

Wallenhorst v Wallenhorst (2017 NY Slip Op 03641)





Wallenhorst v Wallenhorst


2017 NY Slip Op 03641


Decided on May 5, 2017


Appellate Division, Fourth Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 5, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


478 CA 16-01721

[*1]RICHARD J. WALLENHORST, II, PLAINTIFF-APPELLANT,
vJAMES R. WALLENHORST, MICHAEL R. WALLENHORST, SHELIA WALLENHORST, RICHARD J. WALLENHORST, RITA WALLENHORST, ELAINE L. BERG, CARL B. ARNOLD, RICK MAIER, DEFENDANTS-RESPONDENTS, AND THOMAS N. PRIME, JR., DEFENDANT. 


CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (STEPHEN W. GEBO OF COUNSEL), FOR PLAINTIFF-APPELLANT.
ANTONUCCI LAW FIRM LLP, WATERTOWN (DAVID P. ANTONUCCI OF COUNSEL), FOR DEFENDANTS-RESPONDENTS JAMES R. WALLENHORST, MICHAEL R. WALLENHORST, SHELIA WALLENHORST, RICHARD J. WALLENHORST, RITA WALLENHORST AND RICK MAIER.

	Appeal from an order of the Supreme Court, Jefferson County (James P. McClusky, J.), entered May 4, 2016. The order denied plaintiff's motion for summary judgment. 
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the third counterclaim of defendants James R. Wallenhorst, Michael R. Wallenhorst, Shelia Wallenhorst, Richard J. Wallenhorst, Rita Wallenhorst, and Rick Maier, and as modified the order is affirmed without costs.
Memorandum: This action arises out of the use of beach property, also referred to as lot 28, that is owned by plaintiff and defendants as tenants in common. Plaintiff constructed a concrete retaining wall and deck pavers on a portion of the property, and thereafter commenced this action seeking a declaration confirming his right to construct the wall, thereby preventing defendants from damaging or interfering with his use of the wall. Plaintiff moved for summary judgment seeking, inter alia, the above declaration and dismissal of the second and third counterclaims of James R. Wallenhorst, Michael R. Wallenhorst, Shelia Wallenhorst, Richard J. Wallenhorst, Rita Wallenhorst, and Rick Maier (defendants). Supreme Court denied the motion.
We agree with plaintiff that the court erred in denying that part of his motion seeking dismissal of defendants' third counterclaim, which alleges breach of contract, and we therefore modify the order accordingly. Plaintiff met his initial burden on the motion by establishing, inter alia, that there is no homeowners' association relating to the joint ownership of the beach property and that there is no written or oral agreement regarding any expenses associated with the property, and defendants failed to raise a triable issue of fact (see generally Zuckerman v City of New York , 49 NY2d 557, 562). We otherwise affirm the order for reasons stated in the decision at Supreme Court.
Entered: May 5, 2017
Frances E. Cafarell
Clerk of the Court


