2281 First Realty, LLC v Warminster Invs. Corp.
Annotate this CaseDecided on October 4, 2011
Andrias, J.P., Friedman, Renwick, Richter, Manzanet-Daniels, JJ.
5619 111121/08
[*1]2281 First Realty, LLC, Plaintiff-Respondent,
v
Warminster Investors Corporation, etc., Defendant-Respondent, Isa Brija, et al., Defendants-Appellants.
Boris Kogan and Associates, New York (David Binson of
counsel), for appellants.
Platte, Klarsfeld, Levine & Lachtman, LLP, New York (Jeffrey
Klarsfeld of counsel), for 2281 First Realty, LLC, respondent.
Law Office of Chris Mills, P.C., New York (Chris Mills of
counsel), for Warminster Investors Corporation, etc.,
respondent.
Order and judgment (one paper), Supreme Court, New York County (Louis B. York, J.), entered April 28, 2010, which, insofar as appealed from as limited by the briefs, denied defendants Isa Brija and John Brecevich's motion to dismiss the first, second and third causes of action for failure to join a necessary party and to dismiss defendant Warminster Investors Corporation's cross claim as identical to a claim pending in a prior action, and granted plaintiff's cross motion for summary judgment on its first and second causes of action, declaring, upon the second cause of action, that plaintiff has a permanent easement through the gate in the party wall and onto Warminster's [Brecevich's] property, unanimously modified, on the law, to deny plaintiff's cross motion as to the first cause of action and to vacate the declaration upon the second, and otherwise affirmed, without costs.
Plaintiff failed to establish prima facie there ever was "a unity and subsequent separation of title" to its property and Brecevich's property, a prerequisite to its claim of an easement by necessity in the gate in the wall between the two properties (see Simone v Heidelberg, 9 NY3d 177, 182 [2007]). As to its claimed entitlement to an easement by prescription, even if plaintiff made a prima facie showing that it used the gate openly, notoriously, continuously for the statutory period, and adversely to Brecevich's interests, Brecevich raised a triable issue of fact through his affidavit stating that plaintiff had never used the gate, that the gate was always padlocked, and that only he had a key (see Jhae Mook Chung v Maxam Props., LLC, 73 AD3d 505 [2010]).
The motion court properly determined that the New York City Department of Parks and Recreation, which owns property adjacent to plaintiff's property, is not a necessary party to this [*2]action (see CPLR 1001; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 819-821 [2003], cert denied 540 US 1017 [2003]). Since the issue is whether plaintiff has an easement in the gate in the wall between its property and Brecevich's property, plaintiff can be afforded complete relief without the participation of the Parks Department, and the Parks Department will not be affected by a judgment in this action.
The court also properly declined to dismiss Warminster's cross claim (see Whitney v Whitney, 57 NY2d 731 [1982]). At the time that defendants Brija and Brecevich moved to dismiss, Warminster had not submitted an answer in the prior action against it and thus had not asserted any counterclaim. Moreover, the court properly directed the parties to advise it of any decisions in the prior action that might affect the cross claim in this action.
We have considered defendants' remaining contentions and find them unavailing.
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