Dunham v Elite Dev., Inc.

[*1] Dunham v Elite Dev., Inc. 2007 NY Slip Op 52603(U) [24 Misc 3d 1219(A)] Decided on October 16, 2007 Supreme Court, Kings County Rothenberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 16, 2007
Supreme Court, Kings County

Monet Dunham, Plaintiff(s)

against

Elite Development, Inc., Defendant(s).



27791/05



Counsel for plaintiff:

Paul Gerstner, Esq.

32 Court Street

Brooklyn, New York 11201

Counsel for defendant:

Butler, Fitzgerald, Fiveson & McCarthy

36 W. 44th Street - Ste 816

New York, New York 10036

Karen B. Rothenberg, J.

Defendant moves for an order pursuant to CPLR 3212 awarding summary judgment in its favor, dismissing the plaintiff's complaint and, for an order pursuant to CPLR § 6514 canceling the plaintiff's Notice of Pendency. Plaintiff opposes the defendant's motion and cross-moves for an order pursuant to CPLR § 3025 granting leave to amend the verified complaint to include a cause of action for an easement by implication and/or necessity. For the reasons set forth below, both the motion and the cross-motion are denied.

The instant action was commenced by the plaintiff to enforce an easement by prescription over a driveway on the property located at 69 Carlton Avenue, Brooklyn, New York, owned by defendant, Elite Development, Inc. Defendant, a real estate company that specializes in the development and sale of real property, purchased the property located at 69 Carlton Avenue by Bargain and Sale deed dated October 1, 2004, from Reta Adoti, who owned the property since September 18, 1989. Defendant, in connection with the closing, had a survey prepared. The survey reflected that 69 Carlton Avenue included a 5 ½ foot driveway immediately adjacent to [*2]the houses situated thereon. The survey also reflected that the property located at 67 Carlton Avenue had a smaller strip of land leading to the rear of that property. Defendant asserts that it purchased the property in good faith without any actual or constructive notice of an easement or a claim thereto.

Plaintiff, is the current owner of 67 Carlton Avenue, the property adjacent to 69 Carlton Avenue. Plaintiff's father, Kenneth Dunham, purchased 67 Carlton Avenue, on June 18, 1987. Plaintiff, who is alleged to have resided at 67 Carlton Avenue since the mid-1980's, acquired title to the property from her father on August 15, 1995. Plaintiff asserts that she and her predecessor in title have used the shared driveway located between 67 and 69 Carlton Avenue as a means of ingress and egress to and from a parking area located in the rear of 67 Carlton Avenue since June 18, 1987. Plaintiff further asserts that the driveway is the only feasible manner by which she may access, by automobile, the parking area, as there is not now, nor has there ever been, any other means of access. Plaintiff claims that her use of the shared driveway was open, notorious, adverse, actual, uninterrupted, hostile, and done under a claim of right for more than 10 years. Plaintiff maintains that she has acquired an easement by prescription over the driveway and seeks a permanent injunction to prevent anyone from interfering or obstructing her access of ingress and egress.

In order to establish an easement by prescription there must be proof of an "adverse, open and notorious, continuous and uninterrupted use" of another's land for the prescriptive period of 10 years (Di Leo v. Pecksto Holding Corp., 304 NY 505, 512, 109 NE2d 600, 603; see also Morales v. Riley, 28 AD3d 623, 813 NYS2d 518). The general rule is that "where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive (J.C. Tarr, Q.P.R.T v. Delsener, 19 AD3d 548, 550, 800 NYS2d 177, 179, see also Duckworth v. Ning Fun Chiu, 33 AD3d 583, 822 NYS2d 147, Coverdale v. Zucker, 261 AD2d 429, 690 NYS2d 134).

Defendant moves for summary judgment on the grounds that plaintiff fails to establish an easement by prescription. Defendant argues that plaintiff, at most, can demonstrate that she is the grantee of a revocable license to use the driveway and should therefore not acquire an easement or right of way over the driveway. In support of its contention, defendant submits letters written by plaintiff's neighbors, which were previously annexed to plaintiff's prior motion for a preliminary injunction, which state in effect that the residents of both 67 and 69 Carlton Avenue used/shared the driveway existing between the two properties. Defendant contends that this evidences that the plaintiff's use was permissive, rather than adverse and hostile.

In opposition to defendant's motion, plaintiff submits photos of the two properties, a Belcher Hyde Map from 1929, and her sworn deposition testimony. Plaintiff's testimony indicates that her father, the prior owner of the property, had been using the disputed driveway, consistently, since the mid-1980's to pull his cars into the back of 67 Carlton Avenue where there was a two car garage. Further, her father paid to have a fence installed on the property of 67 [*3]Carlton Avenue which spanned across the disputed driveway and opened to allow cars access to the garage at the rear of the property. The gate had a lock and each owner had a key. Plaintiff further testified that her father had repaired the driveway; having it "repoured" and paying for that expense. Ms. Adoti did not occupy the premises when she purchased it, using it instead as a rental property.

Further, the submitted pictures show a gated driveway between 67 and 69 Carlton Avenue. The gate is the same color, height and type as the gating which spans across the front 67 Carlton Avenue, plaintiff's property. In addition to the pictures, plaintiff submits a Belcher Hyde Map from 1929 which she alleges shows the existence of a common driveway as well as a garage in the rear of her property. Plaintiff also points out that defendant's 2004 survey, annexed to defendant's papers, shows the existence of a gated driveway between 67 and 69 Carlton Avenue as well as a one story concrete and frame building in the rear of plaintiff's property.

Here, the testimony and proofs submitted demonstrate that the driveway was the only feasible manner by which the plaintiff and her predecessor in title were able to gain access by automobile to the parking area in the rear of the property located at 67 Carlton Avenue. Further, plaintiff's allegations and submissions indicate that use of the driveway was open, notorious, uninterrupted and undisputed for at least the prescriptive period. Accordingly, the plaintiff's use is presumed to be adverse or hostile, under a claim of right, placing the burden upon the defendant, as the owner of the servient tenement, to show that the use was permissive (see Frumkin v. Chemtop, 251 AD2d 449, 674 NYS2d 409). Here, even assuming that defendant's submissions suggest that use of the driveway was permitted as a matter of willing accord and neighborly accommodation, plaintiff's photos (as well as the pictures submitted by the defendant), showing a gate spanning from plaintiff's property over and across the driveway, which was allegedly installed and paid for by her father, together with her claim that her father did repair work to the driveway at his sole cost and expense, evidences hostile use sufficient to raise a triable issue of fact as to the existence of a prescriptive easement (see Cannon v. Sikora, 142 AD2d 662, 531 NYS2d 99).

Lastly, the plaintiff's cross-motion to amend the complaint to include a cause of action for an easement by implication and/or necessity is denied. Generally, leave to amend a pleading is to be liberally granted, however, where as here, the proposed amendment is insufficient as a matter of law or is without any merit, leave to amend should be denied (see Morton v. Brookhaven Mem. Hosp., 32 AD3d 381, 820 NYS2d 294). In order to establish an easement by implication from pre-existing use, there must be "unity and a subsequent separation of title, the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and the use must be necessary to the beneficial enjoyment of the land retained" (Abbott v. Herring, 97 AD2d 870, 469 NYS2d 268 affd 62 NY2d 1028, 479 NYS2d 498; see also West End Props. Assn. Of Camp Mineola, Inc., v. Anderson, 2006 NY Slip Op 6572, 32 AD3d 928, 823 NYS2d 412). In order to establish an easement by necessity, plaintiff in addition to proving unity and subsequent separation of title must also prove that at the time of severance an easement over defendant's property was absolutely necessary (see [*4]Stock v. Ostrander, 233 AD2d 816, 650 NYS2d 416). Mere convenience is not sufficient (see Town of Pound Ridge, v. Golenbock, 264 AD2d 773, 695 NYS2d 388) Here, plaintiff, aside from neglecting to submit an affidavit of merit, fails to proffer any evidence demonstrating that the two properties were ever under common ownership, a necessary prerequisite to maintaining either cause of action. Accordingly, plaintiff's proposed complaint fails to state a viable cause of action for either an easement by implication or necessity.

This constitutes the Decision and Order of this Court.

Enter,

________________________

Karen B. Rothenberg

J.S.C.