Phillips v. Town of Stony Point

Appellate Division of the Supreme Court of New York

Phillips v. Town of Stony Point

104 A.D.2d 1033, 481 N.Y.S.2d 10, 1984 N.Y. App. Div. LEXIS 20468

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 29, 1984

StatusPublished

This text of 104 A.D.2d 1033 (Phillips v. Town of Stony Point) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Phillips v. Town of Stony Point, 104 A.D.2d 1033, 481 N.Y.S.2d 10, 1984 N.Y. App. Div. LEXIS 20468 (N.Y. Ct. App. 1984).

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Opinion

— In an action for a declaratory judgment against defendant the Town of Stony Point (town), Sigmund and Patricia Ann Jacobsen, not named as defendants herein, appeal from so much of an order of the Supreme Court, Rockland County (Ruskin, J.), dated November 3, 1983, as denied their motion to set aside a portion of a judgment of the same court, dated July 8, 1982, insofar as it applies to a 50-foot-wide easement on their property.

Order reversed, insofar as appealed from, without costs or disbursements, the Jacobsens’ motion to vacate the prior judgment insofar as it applies to the 50-foot-wide easement on their property is granted, and the judgment is modified accordingly.

Because the declaratory judgment dated July 8, 1982 affects the rights of the Jacobsens, they should have been joined in the action (see CPLR 1001, subd [a]). Thus, Special Term acted improperly in rendering a declaratory judgment concerning the 50-foot-wide easement located on the Jacobsens’ property when the Jacobsens did not have an opportunity to be heard (see Cadman Mem. Congregational Soc. v Kenyon, 279 App Div 1015, 1016, affd 306 NY 151). Accordingly, that portion of the judgment should be set aside.

We note that the precise issue raised herein has been raised in at least two other lawsuits presently pending in which the Jacobsens are parties (see Stony Point v Jacobsen, Index No. 4713/83; Phillips v Jacobsen, Index No. 1755/84). Brown, J. P., Niehoff, Rubin and Eiber, JJ., concur.

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— In an action for a declaratory judgment against defendant the Town of Stony Point (town), Sigmund and Patricia Ann Jacobsen, not named as defendants herein, appeal from so much of an order of the Supreme Court, Rockland County (Ruskin, J.), dated November 3, 1983, as denied their motion to set aside a portion of a judgment of the same court, dated July 8, 1982, insofar as it applies to a 50-foot-wide easement on their property.

Order reversed, insofar as appealed from, without costs or disbursements, the Jacobsens’ motion to vacate the prior judgment insofar as it applies to the 50-foot-wide easement on their property is granted, and the judgment is modified accordingly.

Because the declaratory judgment dated July 8, 1982 affects the rights of the Jacobsens, they should have been joined in the action (see CPLR 1001, subd [a]). Thus, Special Term acted improperly in rendering a declaratory judgment concerning the 50-foot-wide easement located on the Jacobsens’ property when the Jacobsens did not have an opportunity to be heard (see Cadman Mem. Congregational Soc. v Kenyon, 279 App Div 1015, 1016, affd 306 NY 151). Accordingly, that portion of the judgment should be set aside.

We note that the precise issue raised herein has been raised in at least two other lawsuits presently pending in which the Jacobsens are parties (see Stony Point v Jacobsen, Index No. 4713/83; Phillips v Jacobsen, Index No. 1755/84). Brown, J. P., Niehoff, Rubin and Eiber, JJ., concur.

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104 A.D.2d 1033, 481 N.Y.S.2d 10, 1984 N.Y. App. Div. LEXIS 20468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-town-of-stony-point-nyappdiv-1984.

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