Two years after Mattituck resident Paul Calabro allegedly walked along the beach in front of Christine and Richard Rivera’s Soundfront Mattituck home, the Riveras’ lawsuit against Mr. Calabro was to go to trial in a Riverhead courtroom Wednesday.
The Riveras allege in their in New York State Supreme Court civil suit that Mr. Calabro twice trespassed on their property, on Sept. 4, 2008,and Aug. 23, 2009. They are seeking a statement from Mr. Calabro that he will not traverse their beach again, according to his attorney, Dave Raimondo of Lake Grove. The Riveras did not return calls for comment this week.
The case brings into focus a legal argument over the long-accepted public right to walk shoreline areas, provided it’s seaward of the mean high water mark. The Riveras have long said that right does not apply to their land.
Mr. Calabro said the Riveras offered to settle the case, filed in December 2009, last year if he would pay $10,000 toward their legal costs and would sign a document stating that he would never turn left when he walks down the public access to the beach to the right of the Riveras’ house. He refused and requested a jury trial.
“I’ve never been in court my entire life, not even a traffic ticket,” Mr. Calabro said, adding that he is looking forward to the trial.
Ms. Rivera has drawn the ire of many neighbors over the years for her defense of her property rights. In 2007, she won a lawsuit against Southold Town and New York State granting her ownership of sand that had built up in front of her property on the west side of the jetty on the west side of Mattituck Inlet. She won that case by default after the state did not mount a defense.
Neighbors have argued that there is federal case law stating that sand accruing on beaches due to man-made structures, called “avulsion,” is different from natural accretion of sand, and that the public has a right to walk on sand that accrues by that method.
The New York State Public Trust Doctrine gives the public the right to walk the beach below the mean high water mark. But it takes 19 years of consistent measurement to define where the mean high water mark is, and the apparent high water mark can change on any day with seasons and storms. Many people who use the beaches regularly use the wrack line as a guide to locating the high water mark.
Mr. Calabro said that when he and his handicapped son were walking in front of Ms. Rivera’s house on the dates he is alleged to have trespassed, there were three wrack lines on the beach. On the first date, no one bothered him, he said. But on the second Ms. Rivera reportedly called the police. The responding officer found Mr. Calabro and his son swimming in the water.
“Officer Tirelli called us out of water, and I said ‘I’m swimming here in the water. What’s going on?’ ” Mr. Calabro said. “He could see where my chairs were, they were half in the water. We must have been at least 80 or 100 feet below mean high tide. They have no case. We never trespassed.”
Mr. Calabro and his attorney said he was never cited by the police for trespassing.
“I am a pretty popular guy here and well-liked by everybody,” he said. “For the last two years, this paradise kind of got a little bit cloudy.”
He said initially he was one of the Riveras’ few friends in the neighborhood, but he fell out of favor with them when he defended the rights of several other neighbors to swim at the beach in front of the their house.
Mr. Raimondo said the Riveras did not provide any witnesses to the alleged trespass while the case was in discovery, but he received a fax this week listing the names of two witnesses, one of whom is a woman from Rockville Centre who once signed a petition in support of Ms. Rivera’s accretion case.
“My case is a simple trespass case,” he said. “They can’t possibly prove trespass unless they have eyewitnesses. For three years I’ve said this is the most ridiculous case I’ve been involved in.”
Mr. Raimondo added that he finds it suspicious that the state defaulted in the 2007 case.
“If a private landowner can take land belonging to the public by default of a state entity, it has far-reaching implications,” said the attorney. “The state has an obligation to answer every case on behalf of the public. Their failure to do so is a violation of our trust.”
He said the state had only one year to vacate the default judgment, which can’t be revisited.
“But that does not mean litigation can’t be pursued in the future,” he said. “But right now, I’m just representing Paul in a trespass case. My job is simply to defend him in a case that has no merit. I’m proud to do so.”
Coverage of the trial will continue at suffolktimes.com.