Posted by: Patricia Salkin | December 4, 2010

NY Appeals Court Dismisses Most Claims Regarding Rockaway Beach Dunes, But Allows Nuisance Claim to Proceed

Petitioner James Agoglia resided in Belle Harbor, Queens, adjacent to Rockaway Beach. In March of 1997, the City of New York constructed dunes at Rockaway Beach. In 2006,  Agoglia requested that NYC Parks remove the dunes, “stating that they had grown substantially in size such that they blocked beach access at the subject streets and had become a safety hazard.” NYC Parks responded that the State Department of Environmental Conservation was in the process of preparing a report on the situation, and that “it would be imprudent to act without an understanding of DEC’s position and recommendations.” Nevertheless, Agoglia brought this proceeding to compel the removal of the dunes. The trial court dismissed his claim based on lack of standing.  The Appellate Division found that although the Supreme Court erred in finding a lack of standing, the petitioner’s case could be dismissed on several alternative theories under CPLR 3211(a). 

The Court first found that the second cause of action brought against the DEC “should have been dismissed for failure to state a cause of action upon which relief may be granted” and that the fourth cause of action (in which the petitioners contended that the New York City Charter had been violated by the original construction of the dunes) was dismissed as time-barred. For the first cause of action (that would force NYC Parks to remove the dunes), the Court determined that it should have been dismissed for failure to state a cause of action, and that a review of the NYC Parks determination (to allow the dunes to remain) should be dismissed as premature, as the agency’s action was not “final and binding.” The requirements for such a final action twofold: that first, ‘the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and, second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.” Here, neither were satisfied. In addition, the Court held that the motion to dismiss made by NYC Parks, based on the grounds of untimeliness, laches, and failure to state a cause of action, should have been granted. 

The only cause of action that the Court determined should not have been dismissed was the third cause of action (that for public nuisance). It held that this action “should not have been dismissed except insofar as it sought to recover damages incurred more than three years prior to the commencement of this proceeding.” 

Agoglia v. Benepe, 2010 WL  4244132 (N.Y.A.D. 2 Dept. 10/26/2010) 

The opinion can be accessed at:


  1. Nuisance, an oldie but a goody.

    PS: Thanks for an excellent blog.

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