Bonnemazou v Levine

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Bonnemazou v Levine 2017 NY Slip Op 32800(U) December 6, 2017 Supreme Court, Suffolk County Docket Number: 14-16404 Judge: Sanford Neil Berland Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] .Co py - SHORT FORM ORDER INDEX NO.: 14-16404 SUPREME C OURT - STATE OF NEW YORK PART 6- SUFFOLK COUNTY PRESENT: Hon. Sanford Neil Berland, A.J.S.C. ORIG. RETURN DATE: February 14, 2017 FINAL RETURN DATE: September 19, 201 7 MOT. SEQ. #: 003 MD FLORENT BONNEMAZOU, Plaintiff, ORIG. RETURN DATE: August 29, 2017 FINAL RETURN DATE: September 19, 2017 MOT. SEQ. #: 004 M G -againstPLTF'S ATTORNEY: ALAN H . LEVINE and RENAY WEISBERG, as Trustees of THE FRANCES W. LEVINE FAMILY TRUST, N ICA B. STRUNK, ESQ. 37 Windmi ll Lane P.O. Box 5087 Southampton, New York 11969 DEFT'S ATTORNEY: Defendants. ESSEKS, HEFTER & ANGEL, LLP 108 East Main Street P.O . Box 279 Riverhead, New York 1190 I Upon the reading and fili ng of the following papers in this matter: (I) Notice of Motion for Summary Judgment, made by plaintiff, dated January 4, 2017; (2) Affirmation in Support of Motion for Summary Judgement, made by plaintiff, dated January 3, 2017, and supporting papers; (3) Affidavit of Florent Bonnemazou in Support of Motion for Summary Judgement, made by plaintiff, dated January 2, 2017, and supporting papers; (4) Memorandum of Law, made by plaintiff, dated January 4, 2017 ; (5) Affirmation in Opposition, made by defendants, dated February l , 2017, and supporting papers; (6)Affidavit of Alan H. Levine in Opposition, made by defendants, dated January 30, 2017, and supporting papers; (7) Affidavit of Frances W. Levine in Opposition, made by defendants, dated February 2, 2017; (8) Supplemental Affidavit of Alan H. Levine, made by defendants, dated March 2, 2017, and supporting papers; (9) Supplemental Affidavit of Frances W. Levine, made by defendants, dated March 2, 2017; ( IO) Corrected Memorandum of Law in Opposition, made by defendants, dated April 4, 2017, and supporting papers; (I I) Reply Memorandum of Law, made by plaintiff, dated April 4, 2017; ( 12) Order to Show Cause, made by plaintiff, dated August I I, 201 7, and supporting papers; it is, ORDERED that these motions (#003 and #004) are hereby consolidated for purposes of this determination; and it is further ORDERED that motion sequence 003 by plaintiff Florent Bonnemazou made pursuant to CPLR 3212 seeking partial summary judgement is denied; and it is further [* 2] ORDER.I;,}) that motion sequence 004 by wuy of order to show cause by plaintiff Florent Bonnemazou made pursuant to CPLR 6513 seeking to extend the notice of pcndency from August 11, 2017, through and including August 21, 2020 is granted: and it is further ORDE RED that the parties are directed to appear for a previously scheduled compliance · conforence on Wed nesday, Dcccm bc1 6, 201 7 M 9:30 A.M. in Pan 6 located at the Cromarty ( 'ourt Complex. 210 Center Dri vc South in Riverhead. This is an action to compel the determination or a claim to real property under J\rtick 15 of the Real Property Actions and Proceedings Law ("RPAPL"). Plaintiff Florcnt Bonncmazou and defendants /\Ian Levine and Renay Weisberg, Trustees of the Frances W. Levine Family Trust, arc the owners of adjoining parcels of real property located on Rose I Iill Road in Water Mill , New York. Plaintiff claims that his pared ("'the Bonnemazou Parcel''). which ht: purchased in April 2012, is benefitted by a five-foot wide pedestrian easement (the '"pedestrian casement") over defendants' parcel ("the Levine Parcel") for access to Hayground Bay. The pedestrian easement is not separately recorded, but plaintiff claims its existence is documented in a contract fur the sale of the Levine Parcel. dated May 2 I, 1985, a survey of the Levine Parce l, dated June 13. 1974. and in the J3onnemazou Parcel chain of title. Plaintiff further claims lhat in September 2013, defendants installed a wire mesh fence that prevented access to the pedestrian casement and interfered with his easement rights. The defendants deny the existence and valid ity of the daimed pedestrian easement across their parcel and assert a counterclaim for the alleged interl'crencc by the plaintiff with a portion of a separate driveway easement benefitting their property ("'driveway easement"), which is now purportedly blocked by gas uti lities. The driveway easement benefitting the Levine Parcel is not in dispute and is recorded in both the Levine Parcel's and BonnemaLou Parcel ' s chains of titles. Plaintiff now moves for partial summary judgment (a) declaring that he has a right to use the five-fool strip to walk over the properly owned by defendants to Hayground Bay, and (h) permanently enjoining the defendants from interfering wilh his use of the strip for that puq1ose. In support of his motion, plaintiff offers the chain or title to his parcel. the Bonnemazou Parcel. which recites the claimed easement; photographs purporting to show a pedestrian pathway across the daimed casement: and an uncerti fied copy of a 1974 survey orthe Levine Parccl that shows a "5' EASEMENT'' along the northern border of the Levine Parcel, running from the north eastern corner of the Chorlton (now 13onnemazou) Parcel to l lay Ground Bay. Defendants oppose the motion, arguing that plaintiff has not demonstrated an cnti tlcmenl to relief or, in any event. has not elim inated all triable issues of material foct. In support of their position, defendants offer the deed to the Levine Parcel, dated September 30, 1985, as well us the Title Insurance Report for the Levine Parcel. also dated September 30, I 985, neither which exp IiL:itly mention the alleged pedestrian casement, as evidence that they had no notice or the peckstrian casement. or On a motion ((>r summary judgment. the movant bears the initial burden and must lender [* 3] cvidem;e sunicicnt to eliminate all material issues of fact ( Wi11egrad v New York Univ. Med. Ctr.. (>..J NY2d 851, 487 N YS2d 316 I I 9851). Once the movant meets this burden, the burden then shills to the opposing party lo demonstrate that there arc ma!erial issues of fact: mere conclusions and unsubstanti<ttl.!d allegations are insunicient to misc any triable issm:s or foct (st'e Z11ckerma11 v Ci~}' of New York , 49 NY2d 557, 427 NYS2d 595 119801; Perez v Grac:e t[Ji.ffopa/ Ch urch . 6 AD3d 596. 774 NYS2d 785 120041). As the court's fum:tion on su<.:h a motion is to determine whether issues or foci exist, not to re ~o lvc issues or fad or to determine matters or credibility, the facts alleged by the opposing party and alt inferences that may be drawn arc to be accepted as true (see Roth v Barreto . 289 AD2d 557, 735 NYS2<l 19712d Dept 2001 j; O'Neill v Town of Fishkill, 134 A02d 487, 521NYS2d27212d Dept 19871). 1 lcr<..!. plaintiff has made a prima facic showing of his ent itlement lo summary judgmm!nt. Plaintiff alleges that defendants had actual no tic<.: of the claimed casement or, in the alternativ<..!. wnstructive or inquiry notice or its existence. In response, however, defendants have demonstrated triable issues of fact. Accordingly. plaintiff's motion for summary judgment must be denied. /\ctuul Notice .. IAJn unrecorded conveyance is deemed void against a subsequent good faith purchaser for value who acquires his interest without actual or constru<.:tive notice or the prior conveyance.. (Schulz v Dattero. I 04 AD3d 831, 961 NYS2d 308 f2nd Dept 20131). Actual notice sufficient lo grant an order for summary judgment has been found, fo r example. when the moving party showed that, prior to the acquisition of the servient parcel, defendant's title insuranct: excepted the easement from the policy (Baiting Hollow Props., LLC v Knolls of Baiting Hollow, LLC, 89 AD3d 776, 932 NYS2d I 60 l2nd Dept 20 I I]); and also when the moving party showed that the contract of sale signed by the defendants expressly stated that the premises were sold subject to an casement (Snytler v Voris, Martini & Moore. f,LC. 52 J\D3d 811, 860 NYS2d 622 12nd Dept 20081). The basis for plaintiffs contention that defendants had actual notice of the pedestrian casement lies in the contract or sale dated May 21, I 985 between Frances W. I ,cvine and the then owners of the Levine Parcel, which recites, among other thing!:>. that "'rt lhc premises are to be transferred subject to: ... d. Any state of facts as shown on a survey by Squires & I lo Iden last dated June l J. 1974." As noted above, the copy of the survey provided by plaintilT, and which evidently was produced in discovery by the defendants, shows a "'5' casement" providing acc<..!ss from the Bonncmazou Parcel to I layground Bay. In opposition to the plaintiffs ulkgation. the defendants submitted affidavits by Alan and Frances Levine swearing that they had no recollection or seeing or possessing the survey until alter the commencement of the instant action. 1 In contrast to the showings in S11ytler (suprn) and in Baiti11g Hollow (supra). the - --- - - - -- 1 Initially, dctcndam Alan 11. Levine avcn-ed that the copy or the survey had been providt:d to him in correspondence hy plaintifrs :ttwmc) shonly before the current action wa:. commenced. In a subsequent Supplemcntnl t\ rtidavit . [* 4] Jocumcnts the lk:li:ndants admit having in their records, including the deed to the Levine Pared and the title insurance report, make no direct reference to the alleged pedestrian casement. I krc. the c.kfrndants raised triable issues of fad with respect to whether they had actual notice or the pedestrian casement. Thus, plaintifrs motion for partial summary judgment cannot be sustained on an .. actual notice .. theory. ~·onstructive Notice Constructive notice can be proven ··in the absence of actual notice before nr at the time of... purchase ... ir Irestrictionsj appear in some deed of recorJ in the conveyarn.;c to Ithat owner I or Ithat owner' sJ tlirect predecessors in title" (Parry v M11rp/1 79 /\03d 713, 913 NYS2d 285 y, r2d Dept 20 10J, quoting Witter v Taggard. 78 NY2d 234, 573 NYS2d 14611991 J (internal quotations omitted}). ""The recording statutes in a grantor-grantec indexing system charge a purchaser with notice o f matters only in the record of the purchased land's chain of title back to the original grantor. .. I/\ purchaser] is not chargeable with constructive notice or conveyances recorded outside of the purchaser's direct chain of title where, as in Suffolk Counly. the grantorgrantce system of indexing is used'' (Witter v Taggard. supm; lot11111ou v South old Tow11 Plm111i11g Bil.. 304 /\ D2d 578, 758 NYS2d 358 [2d Dept 2003 ]). ··1AJ deed conveyed by a common grantor to a dominant landowner docs not form part or the chain or ti tle to the scrvient land retained by the common grantor.. (Witter v Taggart/, supra: / 0 01111011 v Southold Town Plc11111i11g Bd.. supra: Farrell v Sitaras, 22 AD3d 518. 803 NYS2d 659 [2d Dept 2005 J). Plninti ff offers two bases to support his all~gation that the cfafendants had constructive notice of the claimed pedestrian casement. First, through hi~ expert, he contt:nds that because the driveway casement recited in the Chorlton Deed for the benefit of the Levine Parcel is "an estate in land appurtenant to the Levine Parcel." the Chorlton Deed - which also recites the 5" pedestrian easement - is in the chain of title for the Levine Parcel. No legal authority. however. is cited by plaintiff or his expert, an attorney, for this proposition. Second.plaintiff argues that by expressly invoking, as the predicate for their counterclaim, the driveway easement as it is recorded in the l3onnemazou chain of title. defendants should be deemed to have made a ··j udicial admission·· of the enforceability of all ol'the provisions orLhe Chorlton Deed, including. the pedestrian casement claimed by plaintiff, arc not free to pick and choose which of the allegedly "rcciprocar· easements is cognizable and which is not. and, in any event. have 1.:onccded notice of the pedestrian casement across their parcel as recited in the Chorlton deed. Although there is some degree of disingenuousness in the defondants' counterargum1::11t that. notwithstanding the express allegations of their counterclaim, the "cvidcnc....: .. or the driveway casement in their favor can be frnmd in their own deed anc.J. therefore. it was unnecessary for them to ··resort to the Chorlton Deed to lind their casement . . . :· they are right that knowledge or the contents of that deed at the time they propounded their counterclaim docs Mr. Lcvinl' stared that he had been incorrect and that the survey had been obtained by his own lawyer in 2 014 after his ti1k in:;urer informed Mr. Levine 1ha1 it had been unable 10 obtain a rnpy of the survey from Syu ircs & Holden . [* 5] nol, in and or itscl L prove knowledge at the time their property was acquired. In any event, the ( 'ourt or appeals has held that a purchaser or land ••is not chargeable with constructive notice or co1wcyanccs recorded outside of the purchaser's direct chain of ti tle when:. as in Suffolk County. the grantor-grantcc system of indexing is uscd"" ( Witter v Taggard, rnpru (emphasis supplied)). rhus. on the current state of the record, there are triable issues of foct with respect lo whether the del\:nJanls can be charged with constructive notice or the pcdest rian easement recited in thc Bonnl.!mazou pared chain of title. J.filluirv Noticl.! ·"Wh<:rc u purchaser has knowledge of any fad, surticic11110 put him on inquiry as to the cxistcncc or some right or title in conflict with that he is about to purchase, he is presumed either to have made th!.:! in4uiry, and a!:iCCrtained the extent of such prior right. or to have been guilty or u lkgree or negligence equally fatal to his claim ... (Scltu/tz v Dllttero. suprn. t/llOfing Maiorano v. <.iarsou. 65 AD3d 1300, 886 NYS2d 190 r2d Dept 20091). "'This presumption, however, is a mere inforence of fad, and may be repelled by proof that the purchaser failed to discover the prior right, notwithstanding the exercise of proper diligence on his part"" (Scltu/tz v Dattero, supra. q11otinx Wil/iamso11 v Brown, 15 NY 354 11857]). In this context. some courts have found that the purchase of title insurance constitutes a reasonably diligent inqui ry, sufficient to defeat a presumption o f inquiry or constructive notice (see e.J!.., Capital Stack Fund, LLC v Badio. 36 Misc 3d 1226IAI. 1226A. 2012 NY Slip Op 51481[Ul I Sup Ct. Rockland County 20121). The hasis for plaintiffs allegation that defendants had inquiry notice of the claimed pctkstrian casement returns, again, to the May 21, 1985 contract for sale of the Levine Parcel. Pluinti IT conll!nds that the exception in the contract of sale for .. Ia lny state of facts as shown on'" the 1974 survey created a duty lo make inquiry into the existence or advcrsl! claims or interests in the properly or sull<..:r the consequences of failing to do so. Plaintiff alleges that had defendants exercised proper diligence and reviewed or otherwise made inquiry into the survey, they would have karned of lhe existence of the pedestrian casement. In response, defendants argue that any duty on their part was satisfied by their purchase ol"title insurance and their reliance on the Title Insurancc Report, which made no mention or the pedestrian casement benefitting the Bonncmazou parcel. Pending further development of the facts. whether such rclianc~ in the face of the express exception in the contract of sale constituted proper diligence or, conversely. defendants should he deemed to have had inqui ry notice of the existence of the pedestrian casement shown on the 1974 survey and recited in the Chorlton Deed, involves issues of fact that cannot be resolved on the current record. Accordingly, summary judgment on the basis or inqui1") notice must he denied at this time. l'hl! Court has also taken notice or the partil.!s. respl.!ctive di:-cussions or the theories of ahandonment and adverse possession with respect to the cascmc:!nl rights claimed by plaintiff. Th1.: parties· competing contentions on these contradictory a~scrtions only serve l'urther to dcmonstralc that triable issues or fact preclude summary judgment. Accordingly. plaintirrs s motion pursuant lo CPLR J'.212 seek ing partial summary judgment 1 denied in its entirety. [* 6] Notice of Pcndencv Finally, plaintiff moves. by order to show cause. to extend the 'otice of Pcndcnc y in this matter. which was set to expire on August 21, 2017. The on.kr signed by Justice Quinlan was served on dcfondant!> on August IL 2017. has not been opposed by ddl:n<lants, and temporarily extendL:d the Notice of Pcndcncy pending a determination by this court. ··A notice of pcndency is valid for three years from the date or filing and may bl! extended for additional three-year periods upon a showing or good cause" (Petervary v Bubnis, 30 /\D3<l 498, 819 NYS2d 2(>712d Dept 2006 I: see CPLR ~ 6513 ). "Thi.! extension ... must he requested prior lo the expirati on of the prior notice:· and ..!al lapsed notice ofpcndcncy may not bl.! rcvivcd"'( T/wmp.wm Bros. Pile Corp. v Ro.Hmblttm, 134 /\D3d 1020, 21 NYS3d 709 1 Dept 20151) Courts have found good 2d cause shown in a varil.!ty or circumstances. (See. e.g, A a m es F1111di11g corp "Houston. 57 /\D3d 808. 872 NYS2d 134 l2d Dept 20081 (finding "good cause·· where fo reclosure action was stayed due to a party tiling bankruptcy); L & L Painting Co., In c. v Ct>lumhia Su.\·sex Corp.. 225 A.D2d 670. 639 NYS2d 491 [2d Dept 19961 (finding ..good caw;~.. where trial court dclayt:d tria l for eleven months); K11opfvSa11ford, 110 A.D3d 502. 972 NYS2d 893 I lstDcpt 20131 (f!nding .. good cause·· whcre discowry and motion practice significantly delayed the final adjudication of thc at.:tion)). I !ere. plain ti ff established good cause sufficient for Jn extension of the Notice of Pcndency. Among other things, plaintiff urges that motion practice has been ongoing over a period of months and that the case was transferred from the inventory of the I lonorablc Peter H. Mayer to this Court. causing some delay in the adjudication of the action. Therefore. the motion to extend th<.: Noti<..:c of Pendency is granted. HON. SANFORD NE IL HKRLANO, A ..J.S.C. FINAL DISPOS ITION XX NON-FINAL l>ISPOSITION

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