U & Me Homes, LLC v County of Suffolk

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U & Me Homes, LLC v County of Suffolk 2017 NY Slip Op 31966(U) August 23, 2017 Supreme Court, Suffolk County Docket Number: 11760/14 Judge: Thomas F. Whelan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] COPY SHORT FORM ORDER INDEX No. 11760/14 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PR ESENT : Hon. THOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------X U & ME HOMES, LLC, Plaintiff, -againstCOUNTY OF SUFFOLK, TOWN OF SOUTHAMPTON, AMUND EDWARDS, : LAWRENCE M. CLARK, JR., JENNIFER GRANT: MICHAEL T. ESCUE, SCOTT N. WIMBUSH, CITIBANK, NA, TOWN OF SOUTHAMPTON PLANNING BOARD, OLIVER & CLARK, INC., SOUTHAMPTON HILLS III, LLC, WINDENMERE SOUTHAMPTON HILLS LTD., VERIZON NEW YORK, fNC., PSEG LONG ISLAND, LLC, STEVEN D. HURD, DAYNA FIELD, Trustee, JOEL ORGLER, Trustee, ROBERT BRENNAN, 90 LAUREL VALLEY, LLC, MATTHEW ROSENBLUM, JENNIFER ROSENBLUM, EMILY SQUIRES, WILLIAM B. PLATT, JR., NOY AC HILLS EST ATES ASSO.. CIA TION, INC., MIDLAND FUNDING NCC-2 CORPORATION, MIDLAND FUNDING LLC, FEDELE T. BAUCCIO, STEPHEN R. BERTINI, : CLERK OF THE SUFFOLK COUNTY DISTRICT : COURT, SABADELL UNITED BANK, NA, : JPMORGAN CHASE BANK, NA, SYNCHRONY : BANK, DENNIS LANG, CAPITAL ONE BANK (USA), NA, UNITED STATES OF AMERICA DEPT. OF THE TREASURY - IRS, PHILLIP REISIG, JACQUELINE REISIG, THE BRIDGEHAMPTON NATIONAL BANK, EVERET A. REISIG, GAYLE A. REISIG, CLERK OF THE : COUNTY OF SUFFOLK and "JOI-IN DOES 1-1 O : " said names being fictitious and unknown to plaintiff: MOTION DATE 7/31117 SUBMITDATE 8/4/ 17 Mot. Seq. # 003 - MotD CDISP: NO BORCHE RT & LaSPINA, PC Attys. For Plaintiff 19-02 Whitestone Expressway Suite 302 Whitestone, NY 11357 DENNIS M. BROWN, ESQ. Suffolk County Attorney By: Jacqueline Caputi, Esq. Assist. Cty. Atty. H. Lee Dennis Bldg. 100 Veterans Memorial Hwy. Hauppauge, NY l l 788 JOSEPH P. RENNA, ESQ. Atty. For Defendant Noyac Hills Est. 74 Friends Ln. Westbury, NY 11590 ANDREW McCABE, E SQ. Atty. For Defendant PSEG 333 Earle Ovington Blvd. - Ste. 403 Uniondale, NY 11553 STEVEN D. HURD, ESQ. Defendant Pro Se 333 W. 571h St. - Apt. 8C New York, NY 10019 NICA B. STRUNK, PLLC Atty. For Defs. Escue, Wimbush and 90 Laurel Valley PO Box 5087 Southampton, NY 11969 [* 2] U & Mc 1lomcs, LLC' v County or Suffolk Index No. I 1760/14 Page~ the pL:rsons or parties intended being the tcnams. occupants. persons or corporations, if any. having or claiming an interest in. or lien upon the premises described in the complaint. Dckndants. .JAMES M. BURKE, ESQ. /\tty. For Def. Town or Southampton I 16 Ilampton Rd. Southampton. NY 11968 DJ\ VI D EPSTEJ Defendant Pro Sc I 00 Rivt!rside Dr. - HJ 81) New York.NY 10024 ---------------------------------------------------------------)( Upon 1hc following papers numbered I to _7_ read on this Molion by the plai111i!Tto !>ubstitutc parties by caption amendments and for default judgments on the amended complaint ; Notice of Motion 'Order to Show Cause and supporting papers I - 3 olice or Cross Motion and supporting papers: _ _: Opposing papers: -'"'-l-.:....5_ _ Reply papers:....§.:]__; 01hcr ; (<111d ttfh:r liettr inf cotm:sel i11 :1t1ppo1 t ttnd opp0$Cd to tire nicrtion) it is. ORDERED thul those portions ol'this motion (f/003) by the plain ti IT, lJ & Mc Homes. IJ ,C, in whid1 it seeks. in effect. an order umending the caption of this action. nunc pro tune, to rcllcct the true and complete naim: or ddcndant. Jennifer Rosenblum, as '·JcnnifCr Rosenblum a/k/a Jennifer Schaffer.. arc considered under CPLR 305 and 3025( b). and arc granted only to the extent that the caption is so umcndcd and all future proceedings shall be c~ptioncd accordingly with respect to this defendant's name: and it is further ORDJ ::RED that those portions of"this motion (#003) by the plaintiff for. in dfoct, an order dropping as party defendants lo this action known defendants. Emily Squires. William 8. Platt, Jr.. and /\mund Edwards and unknown defendants John Doc #4-l 0 arc considered under CPLR I 003, I 015 and I 021 and arc granted only to the extent that defendant. Emily Squires. is hereby dropped as a party tkfcndant lo this action pursuant to CPLR I 003 and the caption arncnckd to rcf1cct this dmnge; and it is further ORDERED that those portions of' this motion (#003) wherein the plaint iff seeks. in clfocl. to idcntif'y the true name of a person served as unknown dcf~ndant. John Doc. namely. David EpstL:in, arc considered under CP LR I024 and are granted. prospectively, together with a caption amendment to rcl1ect this idcntilicution of John Doc # I as Davld Epstein; and it is further ORDERED that those portions of this motion (#003) wherein the plaintiff seeks to drop as puny ddcndunts the purportL:<l personal representatives of the estates of t"wo named ddcndams v. ho arc no\\ deceased. namel). William l3. Platt. Jr., and J\mund Edwards, and said rcprcscntati\'cs· ··substitution" in the place of unknown defendants John Doc ft I and #2 pursuant to CPLR I 024. arc considered under Cl' LR 1024, I 015 and 1021 and arc denied as is the request to delete John Doc (.kf'cmlants 114 - 11 10: and it is l'urther ORDERED that the remaining portions of this motion (//003) wherein the plaintiff seeks default judgments against all n<:wl y added defendants served with the supplemental summons and [* 3] U & Me Jlomcs, LLC v County of Suffolk. Index No. 11760/ 14 Page 3 amcndec.1 complain! who foiled to answer said amended complaint arc considered then.:under and undl.!r CPLR 3115 and arc denied. The plaintiff com1m..·nced this action against dckndant. County or Suffolk. for declaratory relief of the type contemplated by RP APL§ 1951 which permits the cxtinguishmenl covenants and restrictions recorded against n.:al property under the circumstances enuml!ratcd therein. Other additional causes or action for the same or similar relief under comm0n law principles were advanced in the original complaint. The plain tiff' s premises consist of a six acre pared ofres.idcntially zoned, vacant land in the Town of Southampton, against which, there is a recorded covenant and restriction. This parcel has twice come into owncrshi p by the defendant, County orSuffolk, due to the non-payment of taxes and bas been the subject or intergovernmental conversati ons and plans for its preservation. In fact, the !irst time il came into ownership by the dekndanL County of Suffolk, i1 was conveyed to a predecessor- in-title with the f'ol lowing restrictive covenant: ·'There shall be no development rights as to this parccJ other than the right to construct a 50' westward extension of J,aurcl Valky Drive, subject Lo approval by the Town or Southampton. " By the commencement of this declaratory judgment action, the plaintiff seeks to have this duly recorded covenant and restriction judicially extinguished. By order dated February 17, 1017, this court denied a motion (#001) by LhcCounty of'Suffolk to dismiss the com plaint served herein and granted a cross motion (#002) by the plaintiff for an order granting it leave to fik and serve a supplemental summons and amended complaint. The granting or this relief afforded the plaintiff the opportunity to add, and jurisdictionally join as new party <klendants to this action. the numerous individuals. corporate entities and unknown dclcndants whose names now appear in the caption set forth above fol lowing the first named defendant, County of Suffolk. lt furthe r arf<.>rded the plaintiff the opportunity to add additional causes of action ft)r common law declaratory relief. In its proposed amended complaint. the plaintiff separately describt.!d each of these new party dclcndants as having ownership interests in neighboring premises or having liens or judgments against said premises which may be adversely affected by the granting of the rel id so ught by the plaintiff. The record rclkcts that on March 20. 20 17. the action was commenced against the new defendants who were the targets or the plaintif'f s cross motion (#002), by the !iling or the suppkmcntal summons and amended complaint together with the February 17, 20 17 order of thi s court with notice or its entry. On the instant motion ( #003 ), the plaintiff asserts that it served the supplemental summons and amended complaint upon al l known defendants except Emi ly Squin.:s, William Platt. .Ir., and /\mund Edwards. Plaintiff also served those papers upon three of the ten unknown ··John Doc.. dcfonc.lants. The plaintiff further asserts thnt each of tht' three named defendants who were nol served with the supplemental summons and complaint be dropped or ..stricken .. as thc;y arc not necessary parties to this action. Though not t.:xpressly stated. it appears from the moving papc.!rs that known defendant. t:mily Squin:s, sold her inte rest in certain neighboring real property to David [* 4] U & Mc Ilomes, LLC v County or Suffolk lmIL'x No. 11760/14 Pagc 4 Epstein. who was sl.'rved with the supplemental summons and amended complaint as an unknown dcl<.!ndant. thereby relieving Ms. Squires of her need to bejoinccll as a party defendant to this action. With these rnntentions the court agrees and has thus granted those portions of this motion (/f003) wherein the plaintiff seeks. in effect, an order pursuant to CPLR I 003. dropping Ms. Squires as a pa11y defendant and an order identifying the true name of an unknown John Doc defi.:ndant as David Epstein. pursuant to CPf ,R I 024. together with caption amendments to reOect this change. In contrast. the court denies the plain ti res demands for an order dropping as party dcl'endants, the other newl y added defendants who were not joined to this action by service of the supplemental summons and amended complaint. namely, William Platt. Jr. and Amund l~dwards. In its moving papers. the plaintiff asserts that these persons arc dead but neither the dates of their respective deaths nor the dates and other particulars regarding the appoin.tmcnt of personal representatives or the estates of these two deceased defendants were put before the court. Upon allegations that the plaintiff it served ··Jonathan James Platt as Executor of the Estate of William 13. Platt, Jr, and Lois !\. Oliver as l ~xecutor of the Estate of /\mund Edwards'·, as unknown defendants, the plaintiff requests that the court issue an order ··substituting" these executors for the two known deceased <ldendants under the provisions or CPLR I024. The court finds, however, that such relic!" is not available to the plaintiff for the reasons set forth below. Thal .. the dead cannot be sued·· is a well established principle or the jurisprudence of this stntc (see Marte v (imber, 58 AD3d I, 867 NYS2d 71 11 '' Dept 2008]). It gives ri se to the rule that a claimant may not bring a legal action against a person already deceased at the time or the commencement or such action, but instead. must generally proceed against the personal .representative of the decedent's estate (see Jordan v City of New York, 23 Al)Jd 436. 807 NYS2d 595 l2d Dept 2005 I; see also Outing v Mat/tis, 304 /\D2d 670. 757 NYS2d 483 1 Dept 20031), 2d or againsl those who have succeeded, by operation of law, to the interests or the decedent in the property that is subj eel lo the judgment of foreclosure and sale (see HSBC Bank USA v Ungar Fami~J' Real~r CoqJ .. 111 !\D3d 673, 974 NYS2d 583 12d Dept 20131; DLJ Mtge. Capital, Inc. v 44 Brushy Neck, Ltd.. 51 ADJ<l 857, 859 NYS2cl 221 12d Dept 20081; Deutsche Ba11k Natl. Trust v Torres, 24 Misdd 12161/\]. 2009 WL 2005599 [Suffolk County, Sup. Ct. 2009 ]). Distilled from thcsc concepts is the well established ruk that no action may effectively be commcnccd against a deceased person subsequent to his or her death and prior to the appointment ofa personal representative (see Arha/ez v C/11111 Kuei Wu. 18 AD3d 583. 795 NYS2d 32712d Dept 20051; Laurenti v Teatom, 210 /\D2d 300, 619 NYS2d 754 l2<l Dept 19941; DimeSav. Hauk <~f New York FSB l Lt111a, 302 !\D2d 558. 755 NYS2d 300 [2d Dept 20031). The death ora named defendant prior to the commencement of an action has thus been held tn render the action. insofar as asserted against a deceased dercndant a legal nulli1y from its inception which leaves the Court without jurisdiction lo grant any requested rclicf(see Rivera v Bruc/1im. l 03 !\D3d 700. 959 YS2d 448 [2d Dept. 20131: Wendover Fi11. Serv. 11 Ridgeway. 93 !\D3d 1156, 940 N YS2d 391 l-+ 11i Ikpt 20121: Marte 1• Graber. 58 /\D3d 1. s11pro; Deutsche Bauk Natl. Trust v Torres, 14 Misdd 1216 I J\ 1.1009 WL 2005599 [Suffolk County. Sup. Ct. 20091: <.f. GMAC Mtge. Onp. ,. Tuck. 299 /\D2d 315. 750 NYS2d 93 I2d Dept 20021). Jn cases wherein the Jiling of a summons and complaint fo llows the dea!h ora person named therein as u party defendant. there can be no substi tution or the 1 [* 5] l l & Mc llomes. LLC ' Count) of Sul'folk Index o. 11760114 Page 5 tkccascd defendant by his or her personal representative or immediate successors-in-interest, :-;ince the action was never commenced against the deceased defendant (see Wendover Fin. Serv. v Ridgeway. 93 J\D3<l 1156. supra: ft.-larte l ' Graber. 58 J\D3d l. supra). It is also \\'Cll cstablishcd that the death ora part) dul) joined tu upemli11K action <li\ests the court of jurisdiction to render judgment or to other"' ise proceed until a proper substitut ion is made (sel' Gouzalez v Ford Motor Co.. 295 /\D2d 474, 7.+4 NYS2d 468 I2d Dept 20021~ Brogan v Mary Immaculate Jlosp ., 209 J\ D2d 663. 619 N YS'.2d 325 I2d Dept 19941). Su<.:h a stay generally continues unt i I a substitution () r the personal r<:presentati \IC 0 r the estate 0 r the deceased dclt:ndant is effected by motion of'thc type contemplated by CPL.I~ 1021 1 . CPLR 1015 thus mandates that if a party dies and the claim by or against him or her is not thereby extinguished. the court shall ordL:r substitution or the proper part ics. ln cases imolving in persomun claims against a ddcndant \\ho dies testate during the pendency of an action whose will is duly admitted to probate. the duly appointed Exe<.:utor or Administrator C.T./\. of the estate of the deceased testator/testatrix defendant is the proper party to be substituted in the action for his or her decedent. Similarly. in actions involving in personam daims against a dclendant who dies intestate. his or her administrator is the proper party to substi tute. 110\.vcver. the rules arc different if the action to which the deceased defendant was joined is an action purely in rem, as such actions do not include claims for personal liability against th1; deceased <lcf'endant that may be col kcted from his or her estate (see Kraker v Roll, I 00 /\D2d 424. 4 74 NYS2d 52712d Dept 19841; Wimer v Kram. 3 AD2<l 175. l 59 NYS2d 417 [2<l Dept 19571: sel' ulso Sala111011 Bros. Realty Cmp. v A lvarez. 22 /\D3d 482. 802 YS2d 705 12d Dept 20051. In these in rem actions. the pt:rsons to whom the property devolved by operation or law. sm:h as the distributces of the a deceased defendant who died intestate or a specific dcvisee named in the duly probated will or a deceasl.!d defendant to whom the premises have been <.:onveycd by the estate fiduciary arc the proper parties to be substituted in the place of the deceased defendant. The procedural requirements for the substitution or proper pm1ies mandated by CPLR I 015 in cases in which a joined defendant dies during the pcndency of the action me set forth in CPLR I 021. It provides that a motion for substitution may be made by the successors or n:presentatives or a party or by any party. The motion must be served, jurisdictionally. upon the persons wh()sc substitution is sought. unless such person or persons voluntarily appear and const.:nt to their substitution thereby submitting to the jurisdi<.:tion of the court (see llorsema11 Antiques, Inc. ,, I/ ucll. 50 /\J)]d W>3 . 856 YS2d 66] l 2d Dept 20081; ftfacomher v Cipolli1111, 226 /\ D2d 4 35, 641 NYS2d 64 l2J Dept 19% I: Topal v B.r:G Corp .. I 08 /\D2d 849, 485 NYS2d 35212d Dept I 985 I). 1 Where the interests of the deceased defendant in the property that is the subject of the action devolve by opt•ration of law to other individuals such as joint tenants. those surviving joint tenant-; arc the sole parties interest!. and no substitution or the deccnsed de fondant is 11cccssary. provided that tht: joint tenant~ were pr~·viou:.I) joined 111 till· action (sl!e llSBC Hank C.~~-1 1· Ungar Fami~r Real~) ' Corp .• 111 AD3d 673. 974 NYS2d 581 2d Dept 20131: /)f J .lltge. Capital, luc. I' 44 Hrt1.\'/ty /\'eek, I.Id.. 51 A DJd 857. 859 NYS2d n I I2d Dept 2008 I: l'alemo I ' ere. /.J. C. 1(1 t\D3d 788, 850 Y~::!d I:! I l2d Dept 200711 [* 6] li & Mc I lomcs. LLC v Counly of Suffolk. ln<lcx No. 11760/J .f Page() Where these conditions arc nol mcL the court is without jurisdiction to substi tute the immediate successors to the decedent· s interest in the subject or the action or the personal represcntati vc or the estate or the <leccase<l defendant (see Macomber '' Cipolli11a, 226 AD2d 435. supra). /\n aclion is commenced hy liling a --summons and complaint or summons ,,·ith nolice in accordance with ICJ>I R 2101 (CPLR 3041 aJ: SI!<:' Goldenberg v Westcl1e...·ter lO llll~l' /lea/Ill Care Corp. 16 NY3<l 323 , 921NYS2d6191 I: O 'Brien vC011treras, 126 /\D3d 958. 6 NYS3cl '273 J'.!J Dept '.WISJ: Fox ,. Utica. U3 /\J)3d 1229. 18 NYS3d 918 J4'n Dept 2015j). In cases whcn:in new panics an.: aJded a lier the initial commencement or the action in accordance with the dictmcs or CJ>l ,R 1003 wh ich are mandmory (see Jaramillo vAsco11cio. 151/\D3d947. NYS3d 12d D<..!pt 2017 j). the action is commenced against thosc newly added parties when thc supplcme11Utl summons is tiled with the dcrk (see M arte v Graber. 58 /\D3d I. at 4. supm). The failure lO file the papers required to commence an action constitutes a nonwaivable. jurisdictional dcfocl (see Goldenberg v Westcliesler Cm111~11 /lealtll Care C()rp .. I 6 1 Y3c.l 323. supra: O'Brien v Contreras. 12(> /\D3d 958 . .rnprn: Fox v City of Utica. 133 /\03d 1229. 18 NYS3d 9 I8 J4lh Dept 2015 I: Matter ofMillen • Waters. 51 /\D3d 113. 853 NYS2d 183 13d Dept 2008]: Be1111 v Los1111adro Ice Co., fil e .. 65 /\D1d 655, 886 NYS2d 32 l2<l Dept 20091). r· I lcrn. the in rem claims ol"thc plaintiff against lhc now deceased dcl'endants. William Plan . und /\mund E<lwards. who were ad<led as party defendants by leave grantl.!d by the order or this coun dated February 17. 2016. were commenced on March 20, 2017. the date on which the plainti rr tiled its supplemental summons and amended complaint with the Clerk. The plaintilrs supporting papers arc devoid of foctual avenncnts regarding whether such commencement prcdaled or postdated the deaths of these now deceased defendants. It is clear under the above cill!<l case authorities that irthese defendants died prior to commencement of the action against them on March 20. 2017. such action is a nullity with respect to them and the provisions of CP LR I 003 must be complied with to ndd their proper successors or estate representatives as party defendants. IL however. the deceased def"endants died subscqu(;nt to March 20. 2017, then the subst itution requirements imposed by C'PLR I 0 I5 and I 021 must be observed (see Jaramillo 11 A sc:o11cio, l 51 AD'.kl 94 7. supra). Wh ile the plain ti ff asserts in its moving pnpers that ··all dd"cndants have been served with the supplemental and amended summons anJ amended complaint" (see •J 7 or the affirmation or I Jclmut Borchert. l·:s4 .. in support or motion 1100:\ ), no proof of service upon William Platt. .I r. or /\mund EJwards was attached to the moving papers. .1 r. ·or did the plaintifrs moving papers contain necessary particulars regarding lhc appointments of the personal representatives of" ihc estates of the deceased defendants and whdhcr the:- arc indeed "'proper parties·· lo be subslilulcd as required by CPLR I 015. The court declines the plnintilrs invitation to ··substitute·· Jonathan .James Plalt and Lois/\. Oliver. in their capacities as personal representatives of"the estates of their respective decedents pursuant to CPI ,R I 024 ·~, as it views such invitation as a means of avoiding the requirements for thejoindl..!r of new parties and/or thc suhstitution or dct:caseJ parties imposed by the provisions of CPLR I 001. IO IS and I 021 (sec• Wendover Fi11. Serv. v Ridgeway . 93 /\D3d. 1156. 1157 -1158. supra). Those portions or the Cl'LR I024 niaJ,.c.:~ 110 prO\· ision for the.: subst itution of panics. [* 7] l J & Mc I tomes. LLC v County ln<lcx No. 1I760114 Page 7 or Suffolk plaintilf s motion (11003) whcn.:in it seeks to drop the nnw ch:ccascd defendants as parties to thi '.-. m:tion arc dt:nicd as an: those seeking the substitution or Jonathan James Platt and Lois/\. Oliver. in their capacities as personal n:pn:scntativcs or the estates of their respccti\e defendants. for unknown defendants John Doc 11 1-2. /\ lso denied an.: the plainti tr s demands for dcfouh judgments agai nsl all tkfcndants served with the supplemental summons and amended complaint. except those whose answers 10 said supplemental summons and amended complaint arc attached to the moving papcrs. l~ntitlcmcnt to a dcfo ult judgml.!nt rests upon the plainti lrs suhm ission of proof or service or the summons and comp lain t. proof or the !'acts constitut ing the c laim an<l proof or the dcraulting party in answering or appearing (see CPLR 32 I 51!'1: U.S. Bank Natl. As.\·'11 "A/l){t. 130 /\D3d 715. 1I N YS2d 864 l2d lkpt 20151: I/SBC Bank USlf., NA . vA lexander. 124 A03d 838, 4 YS2d 47 l2d Dept 2015]: Todd 1· Gree11. 112 /\D3d 831. 997 NYS2d J 55 I2d Dept 20141; U.S. Bank, Natl. Ass'11 v Razo11. 115 /\D3d TJ9. 981 NYS2d 571 12<l Dept 20 14 I: Green Tree Serv., LLC v Cary. I 06 /\DJd 691. 965 NYS2d 511 j2<l Dept 20 I 3 I: Dupps v Betancourt. 99 /\D3d 855. 855. 952 NYS2d 58512d Dept 20121: Tria11gle Prop. #2, LLC. v Narrmg 73 AD3d 1030. 903 YS2d 42412d Dept 20 I 0]). While the quantum or proor necessary lo support an application for a default judgment is not nearly as exacli ng as the proo r required on a motion for summary j udgmcnt. some firsthand conlinnat ion or the facts fo rming the basis for the daim must be presented (see Wrwdson 1• 1 We11do11 lea.•;i11g C011J .. 100 NY2d 62. 760 NYS::!<l 72712003 1: Feffer 11 Malpeso.110 AD2d 60, 619 NYS2d 46 j2d lkpl 1994 J ). /\cc.:ording,ly. the plaintiff must advance facts from which the court muy discern the plainti!rs posscssion of on1.: or more via hie claims for n.:lief against the de!Uulting Jcfcmlant in an allidavit or verilied complaint (see CPS Group, Ju e. v Gastro Enter. C01p., 54 /\D3d 800. 863 YS2cJ 764 I2d Dept 20081: Resnick v Lebovitz. 28 /\D3d 533. 813 Y '2d 480 12d Dept 20061: Beato11 v Trans it Fae. Corp. . 14 /\D3d 637, 789 J YS2d 314 f2d Dept 20051). Where these clements arc established, a motion for entry or a default judgment should be granted (sl'e Woodson v Mendon Leasing Corp .. 100 NY2d 62, 760 NYS2d 727 12003 I: Citimortgage, Jue. 1• Clunv Mi11g Tung. 126 /\0 3d 841. 20 15 W L 121359 I 12d l)t:pt 20 I 5 J: Todd v (lree11 . 1:22 /\l)Jd 8J I. 997 NYS2d 1551 2d Dept 20 14j. supra: U.S. Bank, Natl. Ass 'n v Raza11. I 15 /\I )Jd T-i9. 98 I N YS2<l 57 1 I~d Dept 2014 I..\·111Jru: Green Tree Sen• LLC" CmJ'. l 06 /\DJd ., ()<)I. 9(15 YS2<l 51 I Pd 1kpt 20 lJ I s111wu ). Whert: th<.:y arc not so est a bl ishcd. the mot ion must be <..knit:tl (sc>e Cardo'' Board ofMgrs. Jefferson Vil. Condo 3. 29 /\D3d 930. 932. 817 YS2d .315 12d Dept 20061. l/llOfi11g Green v Do/pity Con.vtr. Co .. 187 /\D2d 635. 63<>. 590 NYS2<l 238 12d Dept 19921:seeolso Vimturella-Ferretti v F'erretti, 74 /\D3d 792, 793. 901NYS2d55112d lkpl 20101). RP/\ PL ~§ 1951 ( I ) and (2) provide that a negative casement can be declared or dctcnnirn:d to hL' tmcnfon.:cabk and a court may adju<lge that the restriction "'shall be completely extinguislK·d .. in thl' event that the rnurt linds that. .. at the 1im1.: the enrorceabi lity of the restriction is brought i11 question 1-1 ... the restriction is or no m:tual and substantial benefit lo lhc persons seeking its 1:11force1111.:11t or s1.:1.:ki11g a <lcdarution or determination of its enforceability. either because the purpose of the restriction has alrcudy been uccomplishcd or, by rca~on of changed conditions orother cause. its purpose is not capable or accomplishment"· (.H'l' Ora11ge & Rockla11d Util. l ' Pltilwold J~:\·tates. 52 t Y2<l 25J. 265. -U 7 YS2d 291 11981 I)... /\s the Court of Appeals has ma<lc clear. the [* 8] U & Mc I lomt.:s. LLC v County of Suffolk Index No. 11760/ 14 Page 8 Legislature intended fo r RPAJ>L § 1951(2) to make ·available to owners of parcels burdened with outmoded rt.:strictions an economical and efficient means of getting rid of them ... (Ferguson v /fart, 15 1 /\D3d l 242. 56 NYS3d 624 l2c.1 Dept 2017 ], tfllotinK Orange & Rockla111/ Util. v Phi/wold Estates. 52 NY2d 253 al 265. s11wa). l lcrc, the plaintiff foiled to establish the existence of !'acts constituting cognizable claims for relief pursuant to RP /\PL§ l 95 l. As this court previously indicated, this case presents numerous issues or fad and law that do not lend themselves to a resolution of the issue or whether or not the restrict ion in question is even subject to the ··stranger to the deed" rule. as expressed in E\·tate of Tlto111so11 v Wade, 69 NY2d 570. 5 I 6 NYS2d 614 ( 1987) or simply constitutes the agreement negotiated between the grant or and grantee of the March 21, 2000 deed (see Order datec.1 February J 7, 20 17). ·rhe moving papers foiled Lo cstabl ish the plaintiff's en tit lcment to a declaration that the su~jcct covenant and restriction arc unenforceable because there is " no actual and substantial benefit to the persons seeking its enforcement or sc<!king a c.leclarntion or determ ination of its enforceability, either because the purpose of the restriction bas already been accomplished or, by reason or changed conditions or other cuuse, its purpose is not capable or accomplishment, or for any other reason·· (RPJ\PL § 195111 J; see generally Nature Conservancy v Co11gel, 296 AD3d 840, 744 NYS2d 281 14'h Dept 2002 I). Nor did the plaintiff establish facts constituting cognizable claims for the rd icf demanded in the ulternatc causes of action that arc set fo rth in the other causes action in the complaint. These causes of action sound in common law declaratory re lie!' that will extinguish or otherwise rern.kr the subject covenant ant.I restrictions unenforceable. In this regard , the court notes that the grant ing or dcclarntory relier is a matter left to the court's c.liscrction, as it may decline to hear the matter if other adequate remedies art.: available (see Morgentlwu ,, Erlhaum, 59 NY2d 143. 4(>4 NYS2d 192 119831: Woollard v Sltt{ffer S tores Co., 272 NY 304 l 1936 I). Specific pleading requirements arc imposed upon those seeking thi s discretionary remedy by the provisions ofC J>LR 30 I 7(b). Pursuant thereto, the pleader must spcci ry the rights and other legal relations on which the declaration is n.:qucstcd and state what further or consequential relief is or could be claimed and the nature and extent or any relief which is claimed. The discretionary nature orthe remedy afforded in declaratory judgments is further reflected in the provisions of its governing s tatute. CPLR 100 I thus provides that .. [t lhe supreme court may render a declaratory judgment ... as to the rights and other leg.al relations or the parties to a justiciable controvt.:rsy" (emphasis added). or lhc term ·justiciable controversy'" as employed in CPLR 100 I has been defined by appellate case authorities as one which involves .. a real dispuk between adverse parties, involving substantial legal interests for which a declaration or rights wi 11 have some practical effect'· (Clumos v MA DA D, LLC. 74 AD3d I 007, 903 NYS2d 503 [2d Dept 20 I 01). /\ controversy is said to exist where the y plai mi ff asserts ri ghls which arc actual 1 cha IJcnged by the de fondant (see Cit a nos v MA J>A D, LLC., 74 /\DJJ 1007. supra). /\concrete, actual controversy presented to the court l()r adjudicat ion ns an abstra<.:t, hypothetical issue is insufficient (see Fragaso v Roma110, 268 J\D2d 457. 702 NYS2d 333 I2d Dept 2000 j ). Because the remedy afforded by a declaratory judgment provides only a judicial declaration nl'righ1s between parties that is aimed at fo restalling fl.1rther Iitigation. such remedy docs not entail coercive relier (.\·ee M orge11tlu111 '' Erlbaum. 59 NY2d 143. supra) . Consequently. the [* 9] lJ & Me l lomes, LLC v County of Suffolk Index o. 11760/14 Page 9 dedaration set forth in the judgment itscl r cannot be executed upon so as to compd a party to perform an act or to surrender properly (ic/.. at 59 Y2<l 148). I !ere, the plaintiffs moving papers foiled to dcmonstrntc focts constituting the elements its claims for the commnn law declaratory relier set forth in its complaint. or /\II other relief demanded is denied except to the extent set forth above. The proposed order attached to the moving papers has been marked .. not signed .. by this court. DATl~D: AugustJJ:rn 17 J

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