Order: Kyle R Milk v. David Menard, Janet Omara

On May 25, 2021 a Order was filed involving a dispute between Kyle R Milk, and David Menard, Janet Omara, for Real Property - Other (Article 15 Proceeding) in the District Court of Oswego County.

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FILED: OSWEGO COUNTY CLERK 12/07/2021 03:18 PM INDEX NO. EFC-2021-0742
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 12/07/2021

At a Special Term of the Supreme
Court of the State of New York held in
and for the County of Oswego on
December 7, 2021.

PRESENT HON. SCOTT J. DELCONTE
Justice of the Supreme Court

SUPREME COURT OF THE STATE OF NEW YORK
OSWEGO COUNTY

KYLE R. MILK.

Ptaintiffl.

Index No. EF C-2021 -07 42
DAVID MENARD; JANET O'MARA; and JOHN
and JANE DOES #l THROUGH 10.

Defendants.

DECISION and ORDER
(Motions Nos. I and 2)

APPEARANCES:

Melvin & Melvin, PLLC, by Erin M. Tyreman, Esq.,.fbr Pluintilf

Antonucci Law Firm LLP by David P. Antonucci, Esq...for Defendants

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This is an action pursuant to Article l5 ofthe Real Property Actions and Proceedings Law

to quiet title to a parcel of waterfront real property in the Town of West Monroe. The disputed

parcel is approximately 165 feet by 53 feet, bordering on Oneida Lake, and undeveloped except

for a private road, over which eleven parcels share a corlmon easement. PlaintiffKyle Milk claims

title to the disputed land by either grant or adverse possession. Defendants David Menard and

Janet O'Mara also claim title to the disputed parcel by grant. Milk moves for a preliminary

injunction pursuant to CPLR Article 63 prohibiting Menard and O'Mara from entering

the disputed parcel or using the private road. Menard and O'Mara oppose the motion,

and cross-move to dismiss the action pursuant to CPLR 1001(a) and 3211(a)(10) for failing tojoin

necessary parties, specifically, the owners of the shared easement rights burdening the subject

disputed parcel. For the reasons set forth, below the motion for an injunction is DENIED, and the

cross-motion to dismiss is GRANTED.

Milk owns a parcel of improved real property on Oneida Lake commonly refened to as

28 Wedgewo(h Point in the Town of West Monroe ('{YSCEF Doc. 1). Milk's property,
also refened to as Harbor Farms Cottage Lots 12 and 13, is accessible by a private easement known

as Wedgeworth Point Road, which also provides access to ten other titled parcel owners in the

Wedgeworth Point Subdivision, namely, Harbor Farms Cottage Lots 14 through 24

(NYSCEF Docs. 2, 35, 42). Immediately to the west of the Wedgeworth Point Subdivision is the

Bishop Subdivision, which had formerly been Harbor Farms Cottage Lot 1l before being

subdivided into eight separate parcels (NYSCEF Doc. 44). The Bishop Subdivision parcels are

accessed by Wedgeworth Drive, a roadway that becomes Wedgeworth Point Road when it enters

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into the wedgeworth Point Subdivision (NYSCEF Doc. 3). Just to the north of the wedgeworth

Point and Bishop Subdivisions is the parcel ol land owned by Menard and o'Mara,

commonly refened to as 1 8 Toad Harbor Road, in Town of west Monroe (NySCEF Docs. I , 42).

Between the wedgeworth Point and Bishop Subdivisions - and between what had been

Harbor Farms Cottage Lots I I and 12 - is a parcel ofland approximately 53 feet wide and 165 feet

deep that fronts on Oneida Lake (NYSCEF Docs. l, 40). This parcel, which is vacant and

unimproved except for the portion of the Wedgeworth Point Road - the common easement -
that runs across it, is the disputed land underlying this action.

Milk claims to hold title to the disputed parcel through either his chain oftitle or by adverse

possession (NYSCEF Doc. l). Specificalty, Milk argues that his title begins by deed recorded on

April 12, 1948, in which Donald Wedgeworth conveyed to Menill Shiels "Lots Nos. 12 and I 3 of

the Harbor Farms Cottage Lots, said Lots being an extension of Lots Nos. 1 and I I extending

easterly along the shore of Oneida Lake together with a Right of Way over the driveway adjacent

to said premises which leads to the highway" (NYSCEF Doc. 4). Shiels conveyed this same

property, with the same description, to Sharon Tynell by deed recorded September 5, 1989

(NYSCEF Doc. 5). And Tyrell then conveyed the same property - with the same description.

along with the language "with any strips or gores related to this premises" added by hand - to Milk

by deed recorded Attgnst27,2012 (NYSCEF Doc. 2). Milk argues that the words "said Lots being

an extension ofLots Nos. 1 and 11 extending easterly along the shore of Oneida Lake" described

and conveyed the disputed parcel QTIYSCEF Doc. I ).

Altematively, Milk argues that he and his predecessors in interest have used the disputed

parcel openly, notoriously and continuously from 1989 until the present time under a claim of right

and, therefore, acquired title to it tkough the doctrine of adverse possession Q{YSCEF Doc. I ).

)

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Tyrrell a{firms in an accompanying affidavit that this use consisted ofher and her husband having

mowed some portion of the grass, weeded, planted flowers, raked leaves and built a fire pit

somewhere on the disputed land, as well as having held occasional picnics and six weddings there,

from 1989 to 2012 (NYSCEF Doc. 14). No details are provided as to what portions of the disputed

land were actually mowed and landscaped, or how frequently, or even when. this work was done

(NYSCEF Doc. 14). Milk himself does not allege to have mowed or performed any landscaping

on the disputed parcel until one time in April of2021, approximately one month after he was sent

a letter by Menard and O'Mara claiming that they owned the property (NIYSECF Doc. 16).

Menard and O'Mara claim the disputed parcel based upon their chain of title, which was

examined by licensed land surveyor David Bardoun, who had previously surveyed Milk's property

in 2012, and then their property in 2021 (NYSCEF Doc. 40). Bardoun opines that the disputed

parcel is part of a larger parcel of property wholly owned by Menard and O'Mara, conveyed to

them by deed by their predecessor in interest (NYSCEF Doc. 40). This opinion is supported by

several different survey maps (\IYSCEF Docs. 42-44). With respect to Milk's claim of adverse

possession, O'Mara affirms by affidavit that she has not seen "any public action that would indicate

[Mitk] claimed title to the disputed lands," aside from his use of the easement, which she does not

contest (NYSCEF Doc. 38). O'Mara's affrdavit is supported by Bardoun, who visited the disputed

parcel on multiple occasions as part olhisjob as a surveyor and "found no indication that Mr. Milk

was occupying the disputed premises or was his predecessor in interest" (NYSCEF Doc. 40).

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I
On May 25,2021, Milk commenced this action seeking to quiet title to the disputed parcel

pursuant to Article 15 Real Property Actions and proceeding Law by filing the Summons,

complaint and Notice of Pendency G{YSCEF Docs. l -8). on July I I, 202 I , prior to the joinder

of issue, Milk brought the instant motion for a preliminary injunction pursuant to CPLR Articte 63,

asking the court to prohibit Menard and o'Mara from entering the disputed area, including the

easement, on the grounds that they are trespassing (NYSCEF Docs. 9- 18, 45). Menard and O'Mara

oppose the request for a preliminary injunction, arguing that they are, in fact, the owners of the

disputed parcel (NYSCEF Docs. 38-44).

On July 12, 2021, Menard and O'Mara filed their Answer, which disputed Milk's claim of

title to the parcel, and counterclaimed for title themselves, as well as for damages for trespass,

ejectment and slander oftitle, and sanctions for the filing ofa frivolous action (}.{YSCEF Doc. 23).

Then, on July 14,2021, Menard and O'Mara brought the instant cross-motion to dismiss the action

for failure to join necessary parties pursuant to CPLR l00i(a) and 321l(a)(10), arguing that the

failure to include the owners ofthe other ten parcels that share a common easement over and across

the disputed parcel along the well-established Wedgeworth Point Road requires dismissal of this

action (NYSCEF Docs. 24-26). Milk opposes the motion to dismiss, arguing that he is not seeking

any relief that would affect the right of way (NYSCEF Docs. 32-35).

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III.

Beginning with the motion for injunctive relief, Milk seeks an order from this Court

pursuant to CPLR Article 63 precluding Menard and O'Mara from entering onto the dispute parcel,

including the portion of the private easement known as Wedgeworth Point Road that runs over

that land, until a final order determining title is issued (NSYCEF Doc. 10). It is well settled that

"[u]pon a motion for a preliminary injunction, the party seeking the injunctive relief must

demonstrate by clear and convincing evidence: (l) a probability of success on the merits;

(2) [the] danger of irreparable injury in the absence ofan injunction; and (3) a balance ofequities

in its favor" (Cangemi v Yeager, I 85 A.D.3d I 397, 1398 [4th Dept 2020] [citations omitted]).

Milk fails to establish any of these elements by clear and convincing evidence, and his motion is

therefore denied.

First, Milk has not established a likelihood ofsuccess on the merits. There is no evidence

to support Milk's claim to title by grant or deed. The handwritten reference to "strips or gores

related to this premises" contained within Milk's deed does not arise lrom his chain of title

G{YSCEF Docs.2, 4 and 5), nor does it describe the disputed land (NYSCEF Doc. 40).

Milk does not submit an abstract, a survey map or an opinion from a title examiner in support of

his claim of ownership; instead relying only upon lay opinions and a tax map, which is not

determinative of the boundaries of real property (NYSCEF Doc. 3; Corter v Fairchild-Carter,

187 AD3d 1360, 1364 [3d Dept 2020]). In response, Menard and O'Mara submit the

uncontradicted expert opinion of licensed land surveyor David Bardoun, who opines that

"the disputed premises is solely titled in [Menard and O'Mara's] name" (NYSCEF Doc. 40),

along with multiple survey maps, including one from 1958, illustrating their ownership of the

disputed tand (NYSCEF Docs. 42-44).

)

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Milk also fails to establish a likelihood of success on his claim of adverse possession.

"To establish a claim ofadverse possession, the occupation ofthe prope(y must be (l) hostile and

under a claim of right (1.e., a reasonable basis for the beliefthat the subject property belongs to a

particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous lor the

statutory period (at least 10 years)" (Reardon v Broadweli, l2l AD3d 1546, 1546

[4th Dept 2014]). Where, as here, the claim of adverse possession is not based upon a written

instrument, then the party seeking title must have taken actions "so as to indicate exclusive

ownership," "which requires that the parcel be 'usually cultivated or improved' or that it 'has been

protected by a substantial [e]nclosure"' (Tonawanda v Ellicot Creek Homeowners Assoc.,

86 AD2d 118,122-23 [4th Dept 1982] [citing former RPAPL 521,522]).

The affidavit of Milk's predecessor in interest fails to state with any particularity the extent,

frequency and dates that she and her late husband had engaged in landscaping work on the disputed

parcel, asserting merely that "[b]eginning in 1989, my husband and I worked on maintaining the

Disputed Land by mowing the grass, de-weeding the property, planting flowers and other greenery

to beautifo the property and raking the property in the fall" (NYSCEF Doc. l4). Without the details

ofhis predecessors in interest's use of the property, the Court cannot find that it is likely that Milk

will succeed in establishing that such use was sufficiently open and notorious to place a reasonably

diligent owner on notice that another was making a claim of exclusive ownership, particularly in

tight of the swom attestations of O'Mara and Bardoun that there was never any observable

maintenance on the disputed land (NYSCEF Docs. 38. 40).

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Second, Plaintifl faits to estabtish any danger of irreparable injuries, claiming only that

"[i]f the Court does not enter a preliminary injunction against Defendants, they will continue to

illegally use the private road to enter onto the Disputed Land and claim land that does not legally

belong to them" (NYSCEF Doc. 16). Neither the use of an easement in common with others,

nor the claiming of title to land whose ownership is cunently being litigated, are irreparable harm.

Milk's purported claim of fear for his personal safety (NYSCEF Doc. 16) has no evidentiary

support in the record, and is belied by the misrepresentation in his affidavit that he was "astounded"

by Menard's claim of ownership and had not "heard anything about a question of title of the

Disputed Land" prior to Menard and O'Mara writing him a letter in March of 2021, when he had

in fact been previously told by his own surveyor that Menard and O'Mara owned the disputed

parcel Q.{YSCEF Docs. 40, 45).

Third, and finally, the equities do not lie in Milk's favor. Milk faits to offer any harm that

he would suffer if an injunction is denied, particularly with respect to the use ofthe easement that

at least ten other families already use. In addition, there are no allegations of any imminent

construction or damage to the disputed land, or interference with the roadway running over it.

In contrast, issuing the injunction would preclude Menard and O'Mara from using what the

uncontradicted expert evidence before this Court suggests is their property, including access to the

waterfront and the back portions oftheir land. Simply put, the balance ofthe equities in this action

strongly favors Defendants Menard and O'Mara. Accordingly, Milk has failed to meet his burden

on any of the three factors necessary to warrant the issuance of a preliminary injunction,

and his motion must therefore be denied.

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IV.

with respect to the cross-motion to dismiss pursuant to cpLR l00l(a) and 3211(a)(10),
Menard and O'Mara argue that the failure to join the owners of the other ten parcels that hold a

deeded right to use the Wedgeworth Point Road easement as parties in this action requires

dismissal ofthe Complaint, because those individuals could be inequitably affected by ajudgment

in this action. The courts have an obligation to ensure, sua sponre where necessary, that all

individuals who may be affected by the relief sought in an action have been joined as parties

(Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761, 763 [3d Dept 2000]).

Generally, the owners ofan easement over a parcel of property are necessary parties in an action

to quiet title to that property, since the determination ofownership to the underlying parcel could

affect their rights (Schaffer v Landolfo,2T AD3d 812, 812 [3rd Dept 2006); cf. Holst v Liberatore,

I l5 AD3d 1216, 1217 [4th Dept 2014] [holding that the owners of a unrelated parcel of property

are not necessary parties in an action to enforce an easement merely because a different easement

burdening their property contains the same language]).

Here, there is a very limited record, with no abstracts of title, before this Court,

along with two competing claims to title by deed to the underlying real property, and one

altemative claim to title by adverse possession. Nothing in the record establishes where the deeded

easement rights of the nonparty property owners along Wedgeworth Point Road originate and,

as such, it is impossible for this Court to know whether or not a determination on the merits in this

action could affect those easement rights. As the Third Department held in Hitchcock v Boyack,

256 AD2d 842 [3rd Dept 1998], "[i] Inasmuch as other prope(y owners not currently named in

the action may be either beneficially or adversely affected by the outcome ollitigation construing

this language," the Complaint and the Counterclaims must be dismissed "for failure to name all

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necessary parties" (256 AD2d at 844). Accordingly, this court must grant Milk and o'Mara's

motion to dismiss this action, in its entirety, as well as their Counterclaims, based upon the failure

to join necessary parties.

v.
Accordingly, upon due deliberation, it is hereby

ORDERED that Plaintiff Kyle Milk's motion for a preliminary injunction pursuant to

CPLR Articte 63 is DENIED; and it is further

ORDERED that Defendants David Menard and Janet O'Mara's cross-motion to dismiss

the Complaint in this action pursuant to CPLR l00l (a) and 321 1(a)( 10) for failure tojoin necessary

parties is GRANTED, and the Complaint and Counterclaims are hereby DISMISSED,

without prejudice; and it is further

ORDERED that the County Clerk is hereby directed to CANCEL the Notice of Pendency

filed in this action on May 25,2021 (NYSCEF Doc. 8)

Dated: December 7.2021

HON. SC J. DELCONTE. J.S.C.

ENTER.

PAPERS CONSIDERED:

1. Summons and Verified Complaint, swom to May 20,2021, with Exhibits A through F,
attached INYSCEF Docs. 1-8);

2. Notice of Pendency, dated May 25,2021 (NYSCEF Doc. 8);

3. Answer with Counterclaims, dated July 12,2021 (NYSCEF Doc. 23);

4. Reply to Counterclaims, dated July 30,2021 (NYSCEF Doc. 30);

5. Notice of Motion, dated June 11,2021 O{YSCEF Doc. 9; Motion No. l);

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6. Attorney Affirmation of Erin M. Tyreman, Esq., affirmed June 11, 2021, with Exhibits A
through C, attached (NYSECF Docs. l0-13; Motion No. l);

7. Affidavit of Sharon '[ yrrell, su'orn to June l. 2021, with Exhibit A, attached
(NYSCEF Docs. l4-15; Motion No. l):

8. Affidavit of Kyle Milk, swom to May 20, 2021, with Exhibits A and B, attached
(\IYSCEF Docs. l6-18; Motion No. l);

9. Affidavit of Janet O'Mara. swom to August 20,2021 (NYSCEFDoc.38; Motion No. l);

10. Affidavit of David P. Antonucci, Esq., swom to August 20,2021 (NYSCEF Doc. 39;
Motion No. I );

II. Affidavit of David Bardoun. swom to August 20. 2021 . with Exhibits A through D,
attached (NYSCEF Docs. 40-44; Motion No. I );

12. Attorney Affirmation of Erin M. Tyreman, Esq., alfirmed August 20, 2021
(NYSCEF Doc.45; Motion No. I )l

13. Notice of Cross-Motion. dated July 14,2021 (NYSCEF Doc.24; Motion No. 2);

14. Moving Alfidavit of David P. Antonucci. Esq., swom to July 14.2021 (NYSCEF Doc. 25;
Motion No. 2); and

15. Attorney Affirmation of Erin M. Tyreman, Esq., affirmed August 19,2021, with Exhibits
A through C, attached (NYSCEF Docs. 32-35; Motion No. 2).

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Scott Del Conte Track Judge’s New Case

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Document Filed Date

December 07, 2021

Case Filing Date

May 25, 2021

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Order: Kyle R Milk v. David Menard, Janet Omara

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