Roslyn Realty & Mgt. Corp. v Park E., LLC
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Roslyn Realty & Mgt. Corp. v Park E., LLC 2011 NY Slip Op 32672(U) October 7, 2011 Supreme Court, Nassau County Docket Number: 7855/11 Judge: Thomas Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. :....... ..... [* 1] 5;LPr SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: Hon. Thomas Feinman Justice ROSL YN REALTY & MANAGEMENT CORP. TRIAL/IAS PART NASSAU COUNTY INDEX NO. 7855/11 Plaintiff MOTION SUBMISSION DATE: 8/8/11 - against - PARK EAST , LLC , DRF HOSPITALITY MANAGEMENT LLC , HOSPITALITY SOLUTIONS INC. , THE GROUND ROUND , INC. and COUNTY OF NASSAU MOTION SEQUENCE NOS. 1 Defendants. The following papers read on this motion: Order to Show Cause and Affidavits............... Notice of Cross- Motions.................................. Affirmations in Opposition.............................. Reply Affirmations............................. RELIEF REOUESTED The plaintiff, Roslyn Realty & Management Corp. , (hereinafter referred to as " Roslyn Realty" ), moves by way of Order to Show Cause for an order enjoining and prohibiting the defendants , Park East , LLC , (hereinafter referred to as " Park East" ), and DRF Hospitality, (hereinafter referred to as " DRF" ), from engaging in any demolition, alteration or construction activity, or taking any other steps or commencing any activity to alter or demolish the existing grade of the propert of Park East along the Western edge of the easement that exists between the properties of the plaintiff and the defendant , Park East , and or to constrct a retaining wall at and along the easement line. The plaintiff, by way of Order to Show Cause , obtained an order from the undersigned , on July 25 , 2011 , directing the defendants , Park East and DRF , and their agents servants , employees , contractors and any and all other persons or entities acting on their behalf, or in concert with them , be temporarily enjoined and restrained from taking any steps or action with reference to the alteration or demolition of the grade of the propert of the defendant , Park East , that adjoins the plaintiffs propert along the western edge of the easement between Lots 810 and 811 and/or from constructing a retaining wall at , or near or along the easement line , and the plaintiffwas [* 2] fuher directed to post an undertaking in the amount of seven hundred thousand and 00/1 00 dollars ($700 000. 00), on July 27 2011 and forward proof of such undertaking to the defendants and this ordered that should the plaintiff not post the undertaking Cour on July 28 2011 , and it was as directed , the temporar restraining order would lapse , be void , and no longer be in effect. fuer As the plaintiff failed to submit proof of an undertaking in accordance with the directives of the Order to Show Cause , the temporar restraining order had elapsed , was void , and was no longer in effect. The defendant , Park East, cross-moves for an order pursuant to CPLR 3211(a)(I) and (7), fied by plaintiff against the propert of Park East , and 6514 , cancellng the Notice of Pendency submits opposition to the plaintiffs Order to Show Cause. The plaintiff, cross-moves , for an order 321 granting plaintiff sumar judgment declarng the existence of easements pursuant to CPLR in favor of plaintiffs propert, permanently enjoining the defendants , Park East and DRF , from engaging in any demolition , construction , or alteration of the existing grade and pavement , or access along the line of the existing deeded easement between the plaintiff s propert and the propert of the defendant , Park East , that would alter, prevent or interfere with the plaintiffs continued use of the easements so declared and granted by this Cour to exist to the benefit ofthe plaintiffs propert, and to the plaintiffs continued use of its deeded easement. The defendant , DRF , submits opposition to plaintiffs Order to Show Cause , and moves for sumar judgment , supports the cross-motion by Park East , and adopts the arguents of co- defendant , Park East , but also addresses DRF' opposition to the net leases of the premises, and puts forth the circumstances that DRF would endure should this Cour grant the plaintiffs motion , and/or cross-motion. The plaintiff, and defendant Park East , submit reply affirmations. and BACKGROUND The plaintiff s PfQpert, known as 1032 Northern Boulevard, Roslyn, N ew York , (Lot 810), is adjacent to the propert ofthe defendant , Park East , known as 1024 Northern Boulevard , Roslyn, New York , (Lots 808 , 809 and 811). The defendant , DRF , is a tenant on the Park East propert. The plaintiffs propert is a 25 ft. x 100 ft. lot improved with a single story stand alone commercial building. The plaintiffs propert, and Park East's propert, are adjacent to one another along a common boundar line ruing the entire 100 foot lengt of the plaintiffs propert, on its . westerly side oflot 810 , with the easterly side of defendat, Park East's , lot 811. A paved drveway exists on the plaintiffs propert that leads into a paved parking area in the rear of the building, and has yellow stall markings for four vehicles. A wrtten recorded deeded easement , dated Januar 19 , 1951 , exists granting plaintiff a fivefoot , non-exclusive easement over the easterly end of Park East's propert, permitting the plaintiff to use the easterly five feet of Park East's propert for ingress and egress of motor vehicles and persons from Nort Hempstead Parkway. Additionally, a four- foot non-exclusive easement was allotted over the westerly end of the plaintiff s propert for the ingress and egress of motor vehicles and persons from North Hempstead Turnpike. Accordingly, the deeded easement provides "a total easement of 9 feet in width front and rear and 100 feet along the sides for the ingress and egress The 9- foot express easement is mutual. [* 3] The foregoing is not in dispute. As already provided , the plaintiff s building provides stall markings for four vehicles. Alongside the paved drveway that leads to the rear of plaintiff s building, into a paved parking area is the 4- foot and 5- foot easement , (total of 9- feet). with stall markings for four vehicles , Approximately 2' 11" from the 9- foot easement , a construction fence has been erected , a total of2' 11" from the easement line. Prior to D RF' s tenancy, Park East' s propert was occupied by restaurants known as Howard Johnson , The Ground Round , and Hospitality. DRF , as par of its development plan , has demolished the existing building previously occupied by The Ground Round , and intends to operate a new restaurant. D RF provides that the proj ect has been ongoing for approximately two and a half years and as par of the development plan , DRF intends to regrade the easterly end of Park End' s propert but not including the (9- foot) easement granted to Roslyn Realty" . DRF submits that the (9up to foot) express easement area will remain intact. The plaintiff maintains that D RF' s proj ect , which involves approximately, a one (1) foot rise above the grade level of plaintiffs propert, topped with a protective railing or fence rising above the wall , wil significantly reduce , restrict and limit the area previously available to the plaintiff for vehicles on the plaintiff s propert. The plaintiff provides that the alteration of the existing common grade of the parking lot area along and abutting the deeded easement, and construction of a retaining wall located at the easement line "would reduce the available width on the plaintiff s drveway and rear parking area to such a degree as to effectively render the deeded easement for ingress and egress of motor vehicles to the rear of the plaintiff s turing and maneuvering propert, unusable The plaintiff submits the report of an engineer who avers that the proposed development wil reduce plaintiff s drveway to 9 feet in width , which is comprised of 4 feet of plaintiff s propert and 5 feet of a deeded easement from the adjoining propert. The engineer submits that 9 feet is inadequate since there will be a retaining wall where drivers will " shy away" from such wall restricting drivers from using " two feet or more ofthe adjoining propert' s parking lot" . As a result the engineer provides that drivers will have diffculty in entering and exiting the very narow driveway, and maneuvering into and out of parking spaces. The engineer submits that an additional 5 feet is needed to allow vehicles to maneuver, beyond the existing deeded easement, (adjacent to the parking spaces), and an additional 2 feet is needed beyond the existing deeded easement (adjacent to the existing building). The plaintiff, by way of the instant action , seeks a judgment declaring that the propert of the defendant , Park East , is subject to an easement in favor of the plaintiff's property, claiming a prescriptive easement for five (5 ft. ) foot wide by fort-two (42 ft. )foot deep area located to the west of and adjacent to the westerly most boundar of the deeded easement, beginning at the parking lot of the plaintiffs propert, and ruing south parallel to the deeded easement, and for a two (2 ft. foot wide strip of land located to the west of and adjacent to the westerly most boundar of the deeded easement , and ruing parallel along the driveway for the distance that such driveway is adjacent to the plaintiffs building strcture. [* 4] Plaintiff seeks , by way of this action , and by way of Order to Show Cause , a permanent injunction , enjoining the defendants from engaging in any demolition , construction , or altercation of the existing grade and pavement , or access which would alter , prevent , or interfere with plaintiffs continued use of the prescriptive easements and deeded easements. Plaintiff also seeks , by way of cross-motion , an order pursuant to CPLR ~ 3 212 granting plaintiff sumar judgment declarng the existence of easements , (deeded and prescriptive), in favor of plaintiffs propert, and the aforementioned permanent injunction. The defendants , Park East and DRF , seek , by way of crossmotion , an order dismissing plaintiff s verified complaint pursuant to CPLR ~ 3 211 (a)( 1) and (a )(7), and an order cancellng the Notice of Pendency fied by the plaintiff against Park East' s propert. APPLICABLE LA W An easement by prescription is generally demonstrated by proof of the adverse , open and notorious , continuous , and uninterrpted use of the subject propert for the prescriptive period. v. Baisley, 197 (315 Main St. Poukeepsie, LLCv. WA 319 Main, LLC 62 AD3d 690 , citing Turner v. Kline 110 Misc2d 14. Where Hassinger v. Shafler 68 AD2d 944; and Weinberg AD2d 681; the use 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 v. Chemtop, Frumkin alleged prescriptive easement to show that the use was permissive. (Id. citing Wechslerv. New York State Dept. ofEnvtl. 197 AD2d at 682; and Turnerv. Baisley, 251 AD2d449; Conservation 193 AD2d 856). Permission , for purposes of defeating ( a) claim for prescriptive easement over real propert, can be inferred where the relationship between the paries is one of neighborly cooperation and v. 3300 accommodation; in such case , the presumption of hostility does not arise. (Air Steam Corp. ' s loading dock was Lawson Corp. 84 AD3d 987). A " (bJusiness owner s use of adj acent. business not ' hostile , as required to demonstrate prescriptive easement over the servient propert, where the relationship between the paries was one of neighborly cooperation and accommodation , and use durng the prescriptive period was with adjacent business s permission. (Id.) Generally, the question of implied permission is one for the factfinder to resolve (Barra v. National R. R. Passenger Corp. Country- Wide Ins. Co. v. Norfolk8. Ry. Co. 75 AD3d 821 , citing Barlow v. Spaziani 63 AD3d at 1227), " and , therefore , the vast majority of 6 NY3d 172; and appellate cases addressing this issue in the contextof a prescriptive easement claim have done so on v. Ning Fun Chiu Duckworth v. Gibbs 46 AD3d 1192; Weir appeals following trials. (Id. citing v. Wiliams 187 AD2d 852; Sleasman McNeil v. Shutts 258 AD2d 695- 696; 33 AD3d 583; Jansen v. Kline 91 AD2d 988; and Hassinger v. Barth 108 AD2d 909; Susquehanna Realty Corp. v. Sawling, 37 AD2d 635). " The rare case in which implied permission is established on sumar judgment normally involves irrefutable proof of " a history of cooperation and accommodation , such Allen seeking the prescriptive easements (Id. citing as an admission of that fact by a par Mastrianni 2 AD3d at 1024), " or a circumstance under which a prevailing presumption in favor of permissive use is invoked , such as where the paries are " related by blood or par of a select group orkState Dept. ofEnvtl. Conservation 193 AD2d at 860). Wechsler v. New of friends (Id. citing [* 5] In the Manouselis case , after trial , the Second Deparent found that the plaintiff did not v. Woodworth (Manouselis have a prescriptive easement over a portion of the defendant's propert. valid line of reasoning and permissible inferences Realty, LLC 83 AD3d 801). " Here , there is a " which could lead a rational jury to conclude , as did the jur here , that the plaintiffs failed toestablish v. Hallmark Cohen that they have a prescriptive easement over the defendants ' propert. (Id., citing v. All Car Movers, Ltd Gannon v. Sloat 40 AD3d at 578; and 45 NY2d 493; Eskenazi Cards AD3d 702). " In this case , the public s use of the subject propert rendered the presumption of 155 AD2d 501; Susquehanna Realty v. Dalto, Burcon Props. hostility inapplicable. (Id citing 108 AD2d 909). v. Barth Corp. The Second Deparment in Almeida v. Wells 74 AD3d 1256 , found that triable issues offact existed as to plaintiff s claim of an easement by prescription waranting the denial of summar judgment. The plaintiffs submissions , including a deposition transcript of a predecessor in interest prima facie showing and an afdavit and surey from a sureyor was insufficient to demonstrate a Main St. Poukeepsie, LLC (Id. However , the Second Deparment in 315 of a prescriptive easement. prima facie shQwing of entitlement to WA 319 Main, supra found that the defendant made a v. summary judgment , and affirmed the lower cour' judgment declaring that the plaintiff did not have a prescriptive easement over the propert owned by the defendant. The Cour held that the use of purorted easement was permitted wiling accord and neighborly accommodation (Id.) The Court found evidence that as a matter of plaintiff s use of the defendant's parking lot for the purose of gaining access (to) its own parking lot was open , notorious , continuous , and undisputed, (and) the defendant established as a matter of law that the plaintiff s use ofthe purorted easement was permitted as a matter of wiling accord and neighborly accommodation (Id.) defendant established , as a matter of law that plaintiffs DISCUSSION In the case at bar , the plaintiff s president and sole shareholder , Simeon S. Patestas , maintains that he , as well as several of plaintiff s employees , clients and colleagues , as evidenced by plaintiff s submission of nine affidavits , has enjoyed thirteen uninterrpted years of access to the disputed portion of Park East's propert, as a necessity to maneuver and enter plaintiffs driveway, as well as the rear of plaintiff s lot , and park , and maneuver vehicles into and out of the parking spaces. This use of the adjoining propert, as per the plaintiff, has been open , plainly visible , without the fence restriction. The defendants , Park East and DRF , maintain that the documentar proof submitted by the defendants to wit ariel photographs of the two properties at the pertinent time , and the deeds establish that the plaintiff has not acquired an easement by prescription, and has used Park East's propert to gain access to plaintiff s driveway and rear parking lot with Park East' s permission. Park East submits the affidavitofits managing member , Anthony Dalto , who avers that plaintiffs use of the purorted prescriptive easement was a " neighborly accommodation . Mr. Patestas avers that he never asked Park East , or Mr. Dalto , and never obtained , permission to use Park East' s propert, and had no conversation whatsoever with Mr. Dalto , an absentee landlord concerning such use , and denies purorted neighborly accommodation. [* 6] Here , several issues of fact exist concerning plaintiffs use of Park East's propert, and whether there has been a neighborly accommodation with respectto plaintiff's purorted prescriptive easement. Upon the record herein , it canot be established , as a matter oflaw , whether the plaintiff s purorted easement was permissive and/or adverse for the prescriptive period. Therefore , plaintiffs motion seeking sumar judgment pursuant to CPLR ~3212 , must be denied. Additionally, the defendant's motion seeking dismissal of plaintiffs action under CPLR ~3211(1), based upon documentar evidence , must fail. The documentar evidence submitted by the defendants does not definitively contradict plaintiff s factual allegations to conclusively dispose plaintiff s claim. Additionally, that branch of the defendant' s motion seeking dismissal pursuant to CPLR ~3211(a)(7) is denied. This being a motion to dismiss for failure to state a cause of action pursuant to CPLR ~3211 (a)(7), the Cour stars with the presumption that the allegations contained in the v. Schwartz 46 NY2d 401). A motion for failure to state a (Becker plaintiffs pleadings are true. cause of action will fail if from its four corners , the factual allegations are discerned which taken together maintain any cause of action cognizable of law , regardless of whether the plaintiff will v. County of Suffolk 187 AD2d 564). (Gruen ultimately prevail on the merits. In view of the foregoing, this Cour being only concerned with the sufficiency of the matters , finds that the plaintiff has stated a causes of action sounding in prescriptive easement and injunctive relief against the defendants. Accordingly, the plaintiff s pleadings , and not evidentiar defendants ' motion to dismiss for failing to state a cause of action is denied. Additionally, here , as plaintiff has elected to file a notice of pendency, plaintiff is precluded v. Naclerio 1 AD3d 571). In any event , as (La Carrubba from obtaining a preliminar injunction. already provided , while plaintiff, by way of Order to Show Cause obtained a temporar injunction such injunction was null and void as plaintiff failed to post the requisite undertaking in accordance with the directives of the Order to Show Cause. In light of the foregoing, it is hereby ORDERED that the prior temporar injunction , by way of order dated July 25 2011 , lapsed was void , and no longer in effect as the plaintiff failed to post an undertaking in accordance with the directives of the Order to Show Cause , and it is hereby fuher and ORDERED that the plaintiffs Order to Show Cause seeking a temporar restraining order preliminar injunction is denied , and it is hereby fuer ORDERED that Park East's cross-motion seeking dismissal of the plaintiff verified complaint pursuantto ~ 3 211 (a)(1 ) and (a )(7), and order cancellng the Notice of Pendency pursuant to CPLR 6514 is denied , and it is hereby fuher ORD ERED that the plaintiff's cross-motion for is denied , and it is hereby fuher sumar judgment pursuant to CPLR 3 212 [* 7] ORDERED that the paries are hereby directed to appear for a Preliminar Conference which shall be held at the Preliminar Conference par located at the Nassau County Supreme Cour on the 26th day of October , 2011 , at 9:30 A.M. This directive , with respect to the date of the Conference is subject to the right ofthe Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminar Conference Clerk and the attorneys for the defendants. ENT Dated: October 7 , 2011 cc: Charles J. Chiclacos , Esq. Dollnger , Gonski & Grossman , Esqs. Lawrence W. Rader , Esq. John Ciampoli , Esq. ENTERED OCT 13 2011 NASSAU COUNTY COUNTY CllRt' S OfftCE
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