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New Rochelle v the LaRoccas - Part II: Six Years of Delays and Motion Practice

Robert Cox

16 Oct 2022 — 5 min read

NEW ROCHELLE, NY -- Before I get into a detailed analysis of the motions filed by both parties, I want to give readers a high-level overview view of the filings, conferences, orders, motions, and a summary of the arguments made by both parties. For those who would like to jump ahead, I have organized all the documents filed in the case into a series of PDF binders, uploaded them and linked them below. I also separated out each of the depositions, uploaded them and linked them below as well.

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The Complaint

A verified complaint was filed on April 1, 2016, by the City of New Rochelle against Flavio La Rocca, Maria La Rocca, Flavio La Rocca and Sons Inc, aka F. La Rocca and Sons Inc. and FMLR Realty Management, LLC (“the La Roccas”) 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”.

The City contends on May 6, 2015, the property was cleared to construct a parking lot.

The Complaint says the action constitutes wrongful entry, continuous trespass, negligence, the creation of a nuisance conversion to the city's trees in violation of New York Real Property Act and Property Law Section 861. The property, 436 Fifth Avenue, encroaches on East Street and Fifth Avenue. The encroachment consists of a stone masonry wall, concrete storage bin, chain link fence and gate and other things. The La Roccas claim an interest in the parcel.

The Complaint notes that two notices of encroachment were sent to the La Roccas, one long before the May 6, 2015, incident and one after.

On June 22, 2009, the City gave notice to FMLR of the encroachment and demanded removal. The notice was not acted upon by the La Roccas.

On November 18, 2015, the City gave notice to FMLR of the encroachment and demanded removal. The notice was not acted upon by the La Roccas.

The demands of the complaint are for compensatory damages, statutory damages, consequential damages, additional statutory damages of $2,500 for the first incident and $5,000 for every incident after that, a permanent injunction, punitive damages, attorneys fees and costs, interest and anything else the court cares to add.

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Time Extensions

The La Roccas were in no hurry to join the lawsuit by filing an Answer; there were three years of delays based on eight requests for time extensions after the original filing on April 1, 2016:

Extension to May 25, 2016
Extension to June 25, 2016
Extension to July 25, 2016
Extension to August 25, 2016
Extension to October 1, 2016
Extension to December 23, 2016
Extension to July 31, 2017
Extension to September 30, 2018

The La Roccas did not respond to the Complaint until April 30, 2019.

The Answer

On April 30, 2019, the La Roccas filed an Answer and Counterclaim. The Answer made the standard denials, notably including a denial that a special permit is required for the La Roccas to use their property where “their property” includes portions of East Street.

The La Roccas contend that while the city now asserts in their complaint that it owns East Street for as long as the La Roccas have owned the property, the city has refused to maintain, repair or improve East Street at their sole expense. The defendant maintained the road and snow removal and improved and repaired East Street, and the city did not object.

The La Roccas say they never removed any trees, never installed a parking lot, and did not use “the parcel” as a parking lot.

The city only began objecting to the location of the La Roccas property when it was about to build a park across the street in 2018 (sic, it was actually from 2003 to 2006), and the La Roccas vocally opposed the city relocating city yard to East Street (2014).

The main argument by the La Roccas is the city cannot have it both ways, that it asserts ownership of East Street but refused to maintain improve or repair East Street as would be required for any road or street used by the public.

The La Roccas admit the encroachment existed for years, but the city did not complain.

The La Roccas claim that because the La Roccas opposed the city yard being moved to East Street, the city began going after the La Roccas; the city brought the lawsuit because the La Roccas oppose the city plan to use eminent domain to take property on East Street and put in the city yard.

The La Roccas also claim that the city effectively stole jersey barriers that belonged to the La Roccas and used them as a barrier to the skate park, then “asphalted them” in place. The city, the La Roccas say, converted La Rocca property, the jersey barriers, with a value of $40,000.

The La Roccas demand reimbursement from the city for the cost of maintaining East Street for 17 years. From 2002 until the present, the La Roccas say they plowed and repaired and filled potholes to access the La Roccas’ property.

The counterclaim demands are $40,000 for the jersey barriers, damages, which amounts to the costs incurred for fixing East Street over a 17-year period, cost, and attorney fees and whatever else the court deems appropriate.

City Response to La Rocca Counterclaims

On May 17, 2019, the city replied to the counterclaims made the standard denials and then repeated their demands in their complaint.

Discussions & Scheduling

Starting on May 17, 2019, there were conferences and, on June 5, 2019, an initiation of a civil mediation program.

On October 24, 2019, the attorney for the city had surgery and sent a letter asking for an extension until December, noting that both parties that conducted a joint site visit and were in “deep settlement discussions”, expressing the hope that by the time the attorney got back from his surgery the case would be settled. That did not happen.

A court referee was appointed to the case on October 30, 2019, and the referee issued a series of orders to schedule depositions and otherwise advance the slow-moving case.

COVID-19 hit in early 2020 causing the closing of the courts and a general slowdown in moving cases forward.

On March 3, 2022, the city asked for a bench trial $150,000 and a permanent injunction punitive damages, attorney fees and costs interest.

On May 17, 2020, a referee report was issued about trial readiness and a motion schedule was established for 2022.

On April 14th 2022, the La Roccas asked for a jury trial.

A motion for summary judgment was filed by the La Roccas on May 27, 2022.

The City filed a motion to amend their reply to the La Roccas counterclaims on May 31, 2022.

The City filed a Motion of Opposition to the La Roccas Motion to Dismiss on August 4, 2022.

The City filed a Motion in Further Support of its Motion in Opposition to the La Roccas Motion to Dismiss on September 9, 2022.

The La Roccas filed a Response to the City’s Response of Additional Facts on September 9, 2022.

The City filed a letter with the judge on September 13, 2022, asking permission to reply to new defenses made in their Response on September 9, 2022. The La Roccas filed a letter with the judge on September 16, 2022, denying they had offered any new defenses and asking that the City’s request be denied.

There has been no response by the judge since the dueling letters were sent last month.

New Rochelle v the LaRoccas – Part I: Brazen Misappropriation