WHITE PLAINS, NY (January 18, 2023) — Judge William J. Giacomo issued an 11-page decision and order yesterday in the long-running case of City Of New Rochelle, Plaintiff v. Flavio Larocca, Maria Larocca, Flavio La Rocca & Sons, Inc,. a.k.a. F. Larocca & Sons, Inc And FMLR Realty Management, LLC, Defendants (“La Rocca”).
The case can now proceed to trial but without Maria Larocca, individually, as a defendant.
All counterclaims by La Rocca were dismissed.
Some of the claims by the City were dismissed in whole or in part and some remain.
The First through Fifth Causes of Action can go forward on all remaining claims by the City except any claims that La Rocca cut down trees or cleared the land in the First through Third Causes of Action.
The Fourth and Fifth Causes of Action were dismissed in their entirety.
The Sixth Cause of Action can go forward on the claim of encroachment onto Fifth Avenue
Violations of New Rochelle City Code §111-38 can go forward on the claim of encroachment on East Street which could get expensive.
The City claims statutory penalties pursuant to New Rochelle City Code §111-40 of at least $7,500.00, plus $50.00 for each day the encroachment has not been remedied.
The City gave notice La Rocca of the encroachment onto East Street and demanded removal on June 22, 2009 and again on November 18, 2015. Neither notice was acted upon by the La Rocca.
The statutory penalty based on the 2015 notice would be about $135,000; based on 2009 notice about $245,000.
Background
The lawsuit was initiated by the City of New Rochelle on April 1, 2016, for “brazen misappropriation of city property for their private personal and business use and their disregard for the boundaries of the city’s right of way”. La Rocca filed a series of counterclaims.
The dispute centers on three points: (1) the clearing of trees by La Rocca on City-owned parkland referred to in the lawsuit as “the Parcel”, which is part of “Flowers Park” as part of the construction of a parking lot; (2) encroachment by La Rocca from his property on 436 Fifth Avenue onto Fifth Avenue; and (3) encroachment by La Rocca from his property at 436 Fifth Avenue onto East Street, a so-called “paper street”, owned by the City but never designated as a public street and not maintained by the City.
The first point was first raised in a series of articles (“Who is Flavio La Rocca?”) published on Talk of the Sound by Robert Cox. Photos, video and articles by Cox were submitted as evidence and Cox was disposed as a witness to the events on May 6, 2015, when La Rocca and those working for him were observed and recorded working on the parking lot.
The extensive papers, exhibits and background information on the case can be found here:
New Rochelle v the LaRoccas – Part I: Brazen Misappropriation
New Rochelle v the LaRoccas – Part II: Six Years of Delays and Motion Practice
In his Decision and Order, Judge Giacomo recounts the details (see above) of the case including the “voluminous amounts of exhibits” before stating his conclusions, quoted below:
Discussion on Arriving at Decisions and Orders
With regard to defendant Maria LaRocca, the City has agreed to withdraw its First through Fifth Causes of Action against Maria, in her individual capacity.
With regard to the First through Fifth Causes of Action (cutting down trees, clearing land, building a parking lot), against the remaining defendants, the Court finds defendants have demonstrated their entitlement to partial summary judgment.
Cutting Down Trees, Clearing Land (First through Fifth Causes of Action)
The plaintiff failed to raise a material triable issue of fact by the submission of admissible evidence, that is not conclusory or speculative, as to whether defendants cut down, removed trees or vegetation, or paved the parcel in question. There is no deposition testimony or any admissible evidence from any witness who testified they personally observed defendants cutting, taking down trees or other vegetation on May 16, 2015.
A review and a plain reading of the four corners of the Complaint clearly indicates allegations that defendants “…entered the Parcel, cut down trees, cleared the land, and created a parking lot” (See First Cause of Action). As to the Second Cause of Action, plaintiff alleges that defendants violated New Rochelle City Ordinance 5301-4 which states it is “…unlawful for any person to remove, destroy, cut, break, climb or injure any tree, plant or shrub on City Property”. The Complaint further alleges that defendants cut down trees, cleared land and constructed a parking lot. The Third Cause of Action alleges that defendants created a parking lot which constitutes a nuisance. The Fourth Cause of Action claims that defendants’ removal of trees and plants on the property constituted conversion of the City’s trees and the Fifth Cause of Action, ie. Violation of Real Property Action and Proceedings Law §861 alleges that defendants cut down and destroyed numerous full-sized, valuable and historic trees, which was deliberate and a violation of the property rights of the City.
The First through Third Causes of Action, any allegations that defendants cut down trees or “cleared the land” are dismissed and the Fourth and Fifth Causes of Action will be dismissed against defendants.
Creating a Parking Lot (First through Third Causes of Action)
As to the First through Third Causes of Action, the court finds there are issues of fact as to whether defendants “…created a parking lot” or placed stones or other material not previously there. While there is substantial evidence in the record that the Parcel was used as a parking area for years prior to May 2015, the court finds there are issues of fact requiring a trial as to the remaining allegations in the First through Third Causes of Action regarding the parking “lot”.
Encroachment on Fifth Avenue (Sixth Cause of Action)
As to the Sixth Cause of Action, with respect to the alleged encroachments on Fifth Avenue and plaintiffs allegations in the Complaint that they are unlawful, greatly impair the aesthetics and usefulness of Fifth Avenue, are unreasonable and constitute a nuisance, the court finds there are issues of material fact as to those claims, which preclude summary judgment. Thus, this branch of the Sixth Cause of Action should proceed to trial should plaintiff wish to pursue doing so.
Encroachment on East Street (New Rochelle City Code §111-38)
As to the alleged encroachment on East Street under City Ordinance §111-38, the City also seeks injunctive relief. While the Complaint states in paragraph fifty (50) that East Street is “controlled and maintained by plaintiff’, there is nothing in the record that supports that contention. By all accounts, the City has never maintained that street. A street that is located within a municipality’s geographical limits may become a city street “…either by dedication or use.” There must also be “…some formal act on the part of the relevant public authorities…coupled with a showing that the road was kept in repair or taken in charge by public authorities” Therefore, there is nothing in the record before the court demonstrating that East Street is a public road, even if included on a tap map or issuance of building permits or certificates of occupancy. However, here there is no dispute that the City has a fee interest in East Road. After considering the foregoing, the Court finds there is a material issue of fact as to whether New Rochelle City Code 5111-38 applies to East Street, requiring a trial.
La Rocca Counterclaims
As to plaintiff’s motion for summary judgment pertaining to defendants’ counterclaims, there are issues of fact as to whether defendants abandoned the jersey barriers and as to money expended by defendants to maintain East Street. Nevertheless, defendants’ failure to file a Notice of Claim is fatal to their counterclaims and the court is constrained to dismiss them.
The Resulting Orders
ORDERED that defendants’ motion for summary judgment on the First through Fifth Causes of Action in plaintiff’s Complaint, as asserted against defendant Maria LaRocca, individually, is GRANTED and those causes of action are hereby dismissed against Maria LaRocca upon plaintiffs consent.
ORDERED that defendants’ motion for summary judgment on the First through Third Causes of Action, as asserted against the remaining defendants is GRANTED in part, in that any and all claims which assert that the remaining defendants cut down trees or “cleared the land are hereby dismissed.
ORDERED that defendants’ motion for summary judgment on the Fourth and Fifth Causes of Action in plaintiffs Complaint is GRANTED and all claims therein, as asserted against defendants, are hereby dismissed
ORDERED that defendants’ motion for summary judgment on the Sixth Cause of Action is DENIED
ORDERED that plaintiffs’ motion for summary judgment on the remaining claims in the First through Third Causes of Action is DENIED
ORDERED that plaintiffs motion for summary judgment on the Sixth Cause of Action is DENIED
ORDERED that plaintiffs motion for an Order, pursuant to CPLR 3025, permitting an amendment to its Reply to defendants’ counterclaims to assert the defenses of statute of limitations, failure to comply with notice of claim requirements and laches is GRANTED
ORDERED that defendants’ motion to sever their counterclaims is DENIED
ORDERED that plaintiffs motion for summary judgment on defendants’ counterclaims is GRANTED and the counterclaims are hereby dismissed
ORDERED that all other requests for relief not specifically addressed are DENIED