Pressley v Cortes

[*1] Pressley v Cortes 2010 NY Slip Op 50739(U) [27 Misc 3d 1214(A)] Decided on April 27, 2010 Supreme Court, Queens County Weiss, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2010
Supreme Court, Queens County

Calvin Pressley and CARRIE PRESSLEY, Plaintiffs,

against

Michael Cortes, FELIX PENA and CECILIA PENA, Defendants.



19461 2009

Allan B. Weiss, J.

Plaintiffs Calvin Pressley and Carrie Pressley are the owners of real property located at 25-08 96th Street, East Elmhurst, New York. Defendant Michael Cortes is the owner of the real property known as 25-07 95th Street, East Elmhurst, New York. Defendants Felix Pena and Cecilia Pena are the owners of the premises known as 25-03 95th Street, East Elmhurst, New York.

In 1997 an action entitled Martin Schaffer v Calvin Pressley (Index No. 10484/97) was commenced to determine claims to real property. Mr. Schaffer and the Pressleys thereafter entered into a stipulation of settlement, whereby the Pressleys agreed to "tender to Martin Schaffer a bargain and sale deed conveying all their right, title and interest to property known on the City Tax Map as Block 1369, Lots 1,3,5,23, 25 and 93." Mr. Schaffer, in turn, entered into a common easement agreement with the Pressleys, dated December 17, 1998, whereby they expressed their desire "to establish a common easement of access to a common driveway located upon the property of MARTIN SCHAFFER" and that they each granted the other, their successors, and assigns the "perpetual right of ingress and egress over and along the common driveway." The Pressleys expressly released any claim that they may have in fee to the property underlying the portion of the common driveway, except for the rights established under said agreement. The driveway easement consists of a strip of land approximately 22 feet wide by 80 feet long which runs along the western boundary of the rear of the premises that are now owned by the defendants. Mr. Schaffer, pursuant to the stipulation, paved the easement area with cement and placed a gate at the street entranceway [*2]to the easement, parallel to the public street at 25th Avenue. Mr. Pressley states that he thereafter posted signs on the fence indicating that it was private property and placed a lock on the gate, and retained the key.

M.S.P. Realty Development Corp., the successor in interest to Martin Schaffer, constructed the private homes purchased by Mr. Cortes and the Penas. On October 7, 2002, prior to the sale of the real property to the defendants, Mr. Schaffer erected a fence, which ran along the eastern border of the easement, placing it entirely on the Pressleys' side of the fence. Mr. Pena purchased his home and real property on October 22, 2002 and Mr. Cortes purchased his home and real property on October 28, 2002. Each deed executed by the respective purchaser and Martin Schaffer, as an officer of the development corporation, acknowledged that the properties were purchased subject to a common easement agreement filed in Reel (Liber) 5440, Page 2030 executed the deeds to the real properties. Each defendant's property measures 95 feet by 40 feet, and the driveway easement is 22 feet wide and 80 feet long.

On July 15, 2003, Felix Pena and Michael Cortes commenced an action against the Pressleys (Index No. 17419/03) asserting a breach of the common easement agreement. It was alleged, among other things, that despite repeated demands the Pressleys had refused to give to give the Penas and Cortes a key to the lock on the gate to the common easement. Mr. Pena and the Pressleys entered into a stipulation on the record on June 19, 2009, settling the action. Mr. and Mrs. Pressley expressly acknowledged that they only have an easement for ingress and egress along the 22 foot strip of property across Mr. Pena's property, and for no other purpose. The Penas and the Pressleys agreed that no one would park any vehicles on the cement easement that runs across the back of the Penas property; that the Pressleys would not interfere with the Penas' ability to remove the fence that is in the back of the Penas property; and that Mr. Pressley would give Mr. Pena a key to the lock that is on the gate on 25th Avenue. Mr. Cortes was not a party to this stipulation as the restoration of his claim to the trial calendar had previously been denied. Immediately after Pena and the Pressleys acknowledged said stipulation, the fence that ran along the entire length of the easement on the Penas' and Cortes' properties was taken down.

On July 22, 2009, the Pressleys commenced the within action against Mr. Cortes and the Penas to establish title to the disputed area by adverse possession. The Pressleys thereafter moved for a preliminary injunction, and the court in a memorandum decision dated November 30, 2009 determined that the plaintiffs had failed to demonstrate a likelihood of success on the merits, but that the balancing of equities required the preservation of the plaintiffs' ability to gain access to the driveway easement. Therefore, the court granted the plaintiffs' motion solely to the extent that the defendants were restrained from blocking the driveway easement, conditioned upon the plaintiffs filing an undertaking. The parties were directed to settle order. In view of the fact that no order was ever submitted by either party for signature, plaintiffs' counsel's assertion that the defendants failed to serve him with a copy of an order and notice of entry, is unfounded. Moreover, as the court's memorandum decision was filed on December 4, 2009, and as the parties failed to submit an order for signature within 60 days, plaintiffs' prior motion for injunctive relief is deemed abandoned (22 NYCRR 202.48). [*3]

Plaintiffs, in their first cause of action, assert a claim against Cortes for adverse possession of the disputed real property that runs across the back of the Cortes' real property. The second cause of action asserts a claim against the Penas for adverse possession of the disputed real property that runs across the back of the Penas' real property. The third cause of action against all defendants seeks adverse possession of the disputed real property based upon an alleged extinguishment of the easement. The fourth cause of action against Cortes seeks to recover damages in the sum of $1,500.00 for damages to the plaintiff's motor vehicle, allegedly caused by Cortes, when he erected a chain link fence on the eastern side of the disputed real property on July 13, 2009.

Defendants served an answer in which they interposed four affirmative defenses. Defendant Cortes interposed a counterclaim for damages based upon plaintiffs' alleged interference with his use and enjoyment of his property, and their alleged refusal to remove a fence that was erected in 2002 across his property, and a counterclaim for abuse of process which seeks to recover attorneys' fees incurred in this action, at the rate of $350.00 an hour. The Pena defendants interposed a counterclaim for damages based upon plaintiffs' alleged interference with their use and enjoyment of their property, and their alleged refusal to remove a fence that was erected in 2002 across their property, and a counterclaim for abuse of process which seeks to recover attorneys' fees incurred in this action at the rate of $350.00 an hour.

Defendants now seek an order dismissing plaintiffs complaint in its entirety and granting summary judgment on their counterclaims for abuse of process, and awarding damages in the sum of $8,078.00 for legal fees incurred from July 2009 to December 18, 2009, plus legal fees for services rendered thereafter at the rate of $350.00 per hour.

It is well settled that "an easement created by grant may be extinguished by adverse possession" (Spiegel v Ferraro, 73 NY2d 622, 625 [1989]). To establish adverse possession of an easement created by an instrument, there must be either "acts sufficiently open to put a reasonably diligent owner on notice" or the property must be "protected by a substantial inclosure" (RPAPL 512 [1], [2]) for the statutory period of 10 years (RPAPL 501). The common-law elements of adverse possession, specifically that possession of the easement "was hostile, under a claim of right, actual, open, notorious, exclusive, and continuous for the statutory period," must also be demonstrated by clear and convincing evidence (see DuMaurier v Lindsay-Bushwick Assoc. L.P., 39 AD3d 460 [2007]; Hall v Sinclaire, 35 AD3d 660, [2006]; Casini v Sea Gate Assn., 262 AD2d 593, 594 [1999]).

The evidence presented establishes that the Pressleys were granted an easement in the disputed area on December 17, 1998, at which time the grantor paved over the easement area and placed a gate at the 25th Avenue entrance to the easement. At the time Mr. Pressley first placed a chain and lock on the gate and posted signs indicating that it was private property, as well on October 7, 2002 when Mr. Schaffer erected the fence along the length of the easement, which put the easement entirely on the Pressleys' side of the fence, the Pressleys knew that they did not own the property subject to the easement. Although Mr. Pressley asserts that no one else made use of the common easement, this cannot establish his ownership of the disputed property. In addition, [*4]Mr. Pressley's attempts to bar Mr. Cortes and the Penas from entry to the common driveway easement, does not establish a right of ownership. The Pressleys acknowledged, under oath, in the June 19, 2009 stipulation of settlement with the Penas that they did not own the subject property, and they did not seek a declaration of their rights with respect to Mr. Cortes. This awareness in December 1998, which was reaffirmed on June 19, 2009, defeats any claim of right in this action (see Robinson v Eirich, 2 AD3d 617, 618 [2003]; Harbor Estates Ltd. Partnership v May, 294 AD2d 399 [2002]; Bockowski v Malak, 280 AD2d 572 [2001]; Joseph v Whitcombe, 279 AD2d 122 [2001]; Giannone v Trotwood Corp., 266 AD2d 430 [1999]; see also Koudellou v Sakalis, 29 AD3d 640, 641 [2006]; see Goldschmidt v Ford St., LLC, 58 AD3d 803, 804-805 [2009]; Congregation Yetev Lev D'Satmar v 26 Adar N.B. Corp., 192 AD2d 501 [1993]). Therefore, that branch of defendants' motion which seeks summary judgment dismissing plaintiffs' first, second and third causes of action sounding in adverse possession, is granted.

That branch of defendant's motion which seeks to dismiss plaintiffs' fourth cause of action to recover damages in the sum of $1,500.00, for property damage to the Pressleys' motor vehicle allegedly incurred when Mr. Cortes erected a chain link fence on the eastern side of the disputed real property on July 13, 2009, is granted. The evidence presented is insufficient to establish that Mr. Pressley sustained any damage to his motor vehicle as a result of any actions taken by Mr. Cortes. It is noted that the preliminary estimate of repair attached to the plaintiffs' compliant, is undated and does not contain a date of loss, and indicates that the entire cost of repair to the front bumper and right fender would be made by an unnamed insurer, and not by Mr. Pressley.

With respect to defendants' counterclaims for abuse of process, it is well settled that abuse of process has three essential elements: (1) regularly issued process, either civil or criminal (2) an intent to harm without excuse or justification, and (3) use of process in a perverted manner to obtain a collateral objective (see Curiano v Suozzi, 63 NY2d 113 [1984]; Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn. Local 1889, AFT AFL-CIO, 38 NY2d 397, 403 [1975]). These requirements have not been satisfied. The mere institution of a civil action is not legally considered process capable of being abused (see Curiano v Suozzi, 63 NY2d 113, 116 [1984]). Moreover, a malicious motive, without more, does not give rise to a cause of action for abuse of process. (Supra, at 117.) Finally, defendants have failed to establish any actual misuse of process in order to obtain an end outside its proper scope (see generally Hornstein v Wolf, 67 NY2d 721, 723 [1986]; Mago LLC v Singh, 47 AD3d 772 [2008]; Panish v Steinberg, 32 AD3d 383 [2006]). Defendants' request for summary judgment on their counterclaims for abuse of process, and for an award of damages consisting of legal fees incurred by the defendants, is denied, and as a motion for summary judgment searches the record, these counterclaims are dismissed (CPLR 3212).

In view of the foregoing, defendants' motion to dismiss the plaintiffs' complaint in its entirety is granted. That branch of the defendants' motion which seeks summary judgment on their counterclaims for abuse of process is denied, and these counterclaims are dismissed. [*5]

Dated: 4/27/10

J.S.C.