Amlak Realty Corp. v A.H.S.A. Corp.
Annotate this CaseDecided on June 29, 2012
Supreme Court, Queens County
Amlak Realty Corp., Plaintiff(s),
against
A.H.S.A. CORP., WALSH AND LA BELLA FUNERAL HOME, INC. and VINCENT LABELLA, (a/k/a VINCENT LA BELLA), Defendant(s).
5354/10
Janice A. Taylor, J.
This action was commenced on March 4, 2010 by the filing of a summons and complaint. On or about April 15, 2010, defendants Walsh-La Bella & Son Funeral Home, Inc. and Vincent Labella a/k/a Vincent La Bella ("defendants La Bella") joined issue by service of a verified answer and counterclaim. On or about November 29, 2010, the defendants LaBella served an amended verified answer, counterclaim and cross-claim.
Plaintiff is the owner of property located at 87-14 Jamaica Avenue, Woodhaven, New York. Defendants LaBella are the owners of adjoining property located at 87-13 87th Street, Woodhaven, New York. On or about January 7, 2004, defendants La Bella acquired an easement over the portion of the plaintiff's property which includes a concrete driveway. In its complaint, plaintiff alleges that the defendants erected a gate that has improperly obstructed access to the plaintiff's property and seeks an order directing the defendants LaBella to remove the gate. Plaintiff's complaint also seeks a declaratory judgment that plaintiff has acquired an easement by necessity and/or an easement by implication and that this easement has been infringed by defendants LaBella's placement of the gate. Finally, plaintiff seeks a declaratory judgment stating that, due to misuse, the easement held by defendants LaBella has been extinguished.
Defendants LaBella now move, pursuant to CPLR §3212, for an order granting summary judgment. Plaintiff now cross-moves, also pursuant to CPLR §3212, for an order dismissing the answer and counterclaim of the defendants LaBella and for summary judgment on the issue of liability on its second, third, seventh, eighth, tenth, eleventh and twelfth causes of action.
Cross-Motion to Dismiss
Plaintiff asserts that the defendants LaBella's answer with counterclaim has no merit. In determining a motion for summary judgment, the court's function is not to determine credibility or engage in issue determination, but rather to determine whether there are material issues of fact for the court to determine (See, Quinn v. Krumland, 179 AD2d 448 [1st Dept. 1992]). In furtherance of this task, the court liberally construes the answers , accepts as true the facts alleged in the answers and accords the defendants the benefit of every possible favorable inference (See, 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144 [2002]).
A review of the defendant's answer reveals that the defendants LaBella deny many of the allegations contained within the complaint, assert several affirmative defenses, including waiver and estoppel, and allege that they have been damaged by plaintiff's interference with their easement. Thus, it is clear that, material issues of fact remain concerning the respective liability of the parties. Accordingly, that portion of the cross-motion which seeks to dismiss the complaint is denied.
[*2]Motion and Cross-Motion for Summary Judgment
Defendants LaBella now move, and plaintiff cross-moves, pursuant to CPLR §3212, for summary judgment on plaintiff's second, third, seventh, eighth, tenth, eleventh and twelfth causes of action. CPLR §3212(b) requires that for a court to grant summary judgment, the court must determine if the movant's papers justify holding as a matter of law, that the cause of action or defense has no merit. The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant (See, Grivas v. Grivas, 113 AD2d 264, 269 [2d Dept. 1985]; Airco Alloys Division, Airco Inc. v. Niagara Mohawk Power Corp., 76 AD2d 68 [4th Dept. 1980]; Parvi v. Kingston, 41 NY2d 553, 557 [1977]).
It is well-settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (See, Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion.
Summary Judgment on Plaintiff's Second and Third Causes of Action
Defendants LaBella move, and plaintiff cross-moves, for summary judgment on plaintiff's second and third causes of action. With these causes of action, plaintiff alleges that the defendants LaBella, by erecting a gate on the rear yard of the subject premises, have converted the area into a parking lot and deprived plaintiff of its right to possession of the area. Defendants LaBella assert that the erection of the gate, and the exclusion of plaintiff from the area, was within the bounds of their rights because they hold an exclusive easement. A review of the subject easement agreement reveals that it states that defendants LaBella have been granted an "exclusive, perpetual easement to use for any legal purposes". Thus, defendants LaBella assert that this easement allows them to exclude anyone from the area, including the plaintiff/landowner.
It is well-settled that a landowner is generally entitled to use the area of its property delineated in an easement as long as this use does not interfere with the easement holder's rights (See, DiDonato v. Dyckman, 76 AD3d 610 [2d Dept. 2010]; Hendrickson v. Trails End Company, et al., 303 AD2d 458 [2d Dept. 2003]). New York courts have ruled that exclusive easements, which give the holder of an easement the right to exclude the landowner, are disfavored. An easement will be deemed non-exclusive unless the [*3]subject easement agreement demonstrates the clear intent of the parties to allow the easement holder to exclude both third-parties and the landowner(See, Iorfida v. Stamos, 90 AD3d 993 [2d. Dept. 2011]; Hurd v. Lis, 92 AD2d 653 [3d. Dept. 1983]).
In the instant action, the wording of the easement agreement does not sufficiently demonstrate that defendant LaBella's easement gives them exclusive use of the property and the right to exclude the plaintiff. The agreement specifically grants the defendants LaBella the right to use the subject area for any legal purposes and further prevents the landowner from placing any posters, advertisements, signs or displays on the south wall of the easement area. However, the agreement does not prohibit the landowner from use of the subject area. Thus, this court rules that the subject agreement does not demonstrate the clear intent to allow the defendants LaBella to exclude the plaintiff/landowner. Accordingly, that portion of the instant motion which seeks summary judgment on plaintiff's second and third causes of action are denied. That portion of plaintiff's cross-motion which seeks summary judgment on the same causes of action is granted.
By order dated October 20, 2010, this court issued a preliminary injunction and restrained defendants LaBella from locking the gate that blocks the entrance to the driveway located at 87-14 Jamaica Avenue, Woodhaven, New York or from blocking plaintiff, its President and his patients access to the rear of the subject property pending the resolution of this action. Upon the granting of plaintiff's motion for summary judgment on its second and third causes of action, defendants LaBella are hereby directed to remove the subject gate.
Summary Judgment on Plaintiff's Seventh, Eighth, Tenth and Eleventh Causes of Action
Defendants LaBella move, and plaintiff cross-moves for summary judgment on plaintiff's seventh, eighth, tenth and eleventh causes of action. With these causes of action, plaintiff alleges that it has an easement by implication and/or an easement by necessity on the subject property. Plaintiff seeks a declaratory judgment and an order directing removal of the subject gate.
In order to demonstrate the existence of an easement by necessity, it must be shown, by clear and convincing evidence, that the subject property was once titled under one deed; that the property was severed; and that, upon severance, the movant's property became landlocked (See, Simone v. Heidelberg, 9 NY3d 177 [2007]; Lew Beach Company v. Carlson, 77 AD3d 1127 [2d Dept. [*4]2010]).A movant may demonstrate the existence of an easement by implication by submission of proof of both unity and subsequent separation of title; proof that, prior to separation, the claimed easement was so long continued and obvious as to show that it was meant to be permanent; and proof that the use is necessary for the beneficial enjoyment of the land (See, Lew Beach Company v. Carlson, at 1130).
However, as this court has already determined that defendants LaBella's easement does not entitle them to exclude the plaintiff from the subject area, plaintiff may not seek an easement on its own property. Accordingly, those portions of defendants LaBella's motion which seeks summary judgment and dismissal of plaintiff's seventh, eighth, tenth and eleventh causes of action are granted. Those portions of plaintiff's cross-motion which seek summary judgment on the above-referenced causes of action and a declaration that it has an easement by implication and/or necessity are denied.
Summary judgment on Plaintiff's Twelfth Cause of Action
Finally, defendants move, and plaintiff cross-moves, for summary judgment on plaintiff's twelfth cause of action. Plaintiff avers that defendants LaBella's easement has been extinguished due to misuse and abuse. In support of this contention, plaintiff asserts that the act of erecting the subject gate was unlawful as it was a violation of the New York City Zoning Resolution. Thus, plaintiff argues that, as any unlawful use is forbidden by the terms of the easement agreement, this court may extinguish defendant LaBella's easement. However, plaintiff has offered no legal basis for its assertion that a violation of the New York City Zoning Resolution is unlawful. Plaintiff does not submit proof, nor even allege, that defendant LaBella's gate has been determined to be in violation of any law or statutes within the State of New York. Thus, plaintiff has failed to meet its burden of proving that summary judgment on its twelfth cause of action is warranted. As the plaintiff has failed to prove any unlawful use by defendants LaBella, the moving defendants have amply demonstrated that summary judgment and dismissal of plaintiff's twelfth cause of action should be granted. Accordingly, that portion of the instant motion which seeks summary judgment and dismissal of plaintiff's twelfth cause of action is granted. It is,
ORDERED, that plaintiff is granted summary judgment on its second and third causes of action. This court hereby determines that defendants LaBella's easement is non-exclusive as to the plaintiff. Defendants LaBella may not limit or encroach on plaintiff's use of the subject area. It is further, [*5]
ORDERED, that defendants LaBella are directed to remove the gate that blocks the entrance to the driveway located at 87-14 Jamaica Avenue, Woodhaven, New York within twenty (20) days of the date of this order. It is further,
ORDERED, that prior to removal of the gate, defendants are restrained from locking the subject gate or from blocking plaintiff, its President and his patients access to the rear of the subject property. It is further,
ORDERED, that those portions of defendants LaBella's motion which seek summary judgment and dismissal of plaintiff's seventh, eighth, tenth, eleventh and twelfth causes of action are granted. These causes of action are hereby dismissed. Finally, it is
ORDERED, that those portions of plaintiff's cross-motion which seek dismissal of the answer and counterclaim of defendants LaBella and summary judgment on plaintiff's seventh, eighth, tenth, eleventh and twelfth are hereby denied.
The foregoing constitutes the decision, judgment and order of the court.
Dated: June 29, 2012
JANICE A. TAYLOR, J.S.C.
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