Matter of 23-31 Astoria Blvd v Villegas

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Matter of 23-31 Astoria Blvd v Villegas 2018 NY Slip Op 33624(U) July 16, 2018 Supreme Court, Queens County Docket Number: 911/18 Judge: Timothy J. Dufficy 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] 911/2018 ORDERS• 311E:> SEQUENCE 1 1 ORIGIN~- Page 1 of e Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY PRESENT: HON. TIMOTHY J. DUFFICY Justice PART35 ------------------------------------------------------------x In the Matter of the Application of 23-31 ASTORIA BLVD, Petitioner, Index No.: 911/18 Mot. Date: 4/27/18 Mot. Seq. 1 For an Order and Judgment Pursuant to Real Property Actions and Proceedings Law Section 881 granting Petitioner a License to enter aJjoining property of Respondents, -againstGONZALO VILLEGAS and MERCEDES VILLEGAS Defendants, --~--------------------------------------------------------------x The following papers were read on this Order to Show Cause by Petitioner 23-3 l Astoria Boulevard, LLC for a license to enter the property, located at 23-39 Astoria Boulevard, Astoria New York, pursuant to RPAPL §881 ; and the cross-motion by respondents Gonzalo Villegas and Mercedes Villegas to reassign the matter and the instant cross-motion to another Justice; for a declaratory judgment in favor of respondents holding that an easement by necessity exists for the benefit of respondents' property; for an award of reasonable license fees and for dismissal of the action pursuant to CPLR 3211 [a][S], on the grounds of res adjudicata and collateral estoppel. PAPERS NUMBERED Order to Show Cause - Affidavits - Exhibits.................................. Notice of Cross Motion - Affidavits - Exhibits.............................. Answering Affidavits - Exhibits . . . . . . . Reply Affidavits . . . . . . . . . . . . . . . I-7 8 - 12 13-15 16-1 7 Upon the foregoing papers it is ordered that the motion by Order to Show Cause and the cross-motion are determined as follows: Pnnt~d. 11115/2019 [* 2] 911/201& ORDER SIGNED SEQUENCE • 1 Page 2 of 9 This is a special proceeding by one landowner (petitioner) against adjacent landowners (respondents) for a license to enter the adjoining property to secure and reinforce an awning that rests upon the petitioner's and respondents' premises. Petitioner submits that it is impossible to secure and reinforce the portion of the awning that rests upon respondent's property without entering the premises of the respondent in that the awning must be secured on each side of it while also removing its "illegal" anchoring onto petitioner's premises. Petitioner 23-31 Astoria Blvd., LLC is the fee owner of the premises, located at 23-31 Astoria Blvd., Astoria, New York, 11103. Respondents Gonzalo Villegas and Mercedes Villegas own the property adjacent thereto at 23-29 Astoria Boulevard, Astoria, New York 11103. The petition is being made pursuant to Section 881 of the New York Real Property Actions and Proceedings Law (RPAPL). Petitioner has previously filed building plans with the NYC Department of Buildings (NYC DOB), for the construction ofa new building at the premises owned by petitioner which involves the demolition of the current structure (the construction project). Petitioner submits that the respondents illegally and without authorization, fastened an awning on respondents' premises to a structure, located on petitioner's premises, and it must be removed in order to construct the new building. One of the requirements of the NYC DOB, prior to the issuance of a demolition permit, is that petitioner secure and reinforce the awning which rests upon respondents ' premises. Petitioner submits that it is impossible to secure and reinforce the awning without entering the premises ofrespondents because the awning must be secured on each side of it while also removing its anchoring onto petitioner's premises. In support of the instant petition, petitioner submits the following: on or about April J 1, 2016, petitioner's attorneys made a written request for permission to enter respondents' property so that the petitioner could perform the requested work. On April 20, 2016, George Razis, Esq., called petitioner's attorney and stated that although he had not been formally retained in the matter, permission to enter respondents' property was denied. Raz is described the presence of an .easement that Gonzalo Villegas claimed exists. On May 2, 2016, petitioner's attorneys telephoned Mr. Razis to inquire as to whether the respondents would reconsider the denial of a license and petitioner was told by Mr. Razis that (once again), although he had not been formally retained in the matter, permission to enter the respondents' property was denied. 2 Pmted 1111512019 [* 3] 911/2018 ORDER 5,GNEO SEQUENCE • 1 P"llt3of8 Subsequently, the respondents retained the Law Offices of Ballon Stoll Bader & Nadler, PC, to represent them in this matter. Counsel for petitioners has called attorney Pankaj Malik, Esq., of Ballon Stoll Bader & Nadler, PC, to discuss this matter. Attorney Malik has appeared in court on a prior petition on behalf of respondents and cross moves this Court. Counsel for petitioner submits that the purpose of the call was to determine if there could be a mutually agreeable resolution to this matter. Although Mr. Malik' s firm confirmed representation ofrespondents, he was unavailable during any of the four telephone calls over the course of a month and, petitioner submits, did not return calls to counsel for petitioner in this regard. Petitioner's contractor states that the proposed work will require approximately one ( l) month at a maximum in the event any unforeseen circumstances arise and three workers. Petitioner submits that it will commence the necessary work immediately upon the court's granting of the requested relief. Petitioner has agreed to pay for any and all actual damages that occur as a result of the entry onto the property of the respondents. Petitioner further submits that time is of the essence in this matter because the construction project has been extensively delayed as a result of efforts of the respondents to impede the work required by the NYC DOB, ana the building that must be demolished by petitioner is deteriorating and the roof is in danger of collapsing. Order to Show Cause RPAPL §881 provides that: When an owner or Jessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry. 3 Pnn1ed· 1111512019 [* 4] 91112018 ORDER S•GNEO SEQUENCE t i The construction of a new building is an improvement of real property within the meaning of Section 881 (N. 7-8 Inv'rs, LLC v Newgarden, 43 Misc 3d 623, 627 [Sup Ct 2014]; Rosma Development LLC v South, 5 Misc.3d 1014(A), 2004 WL 2590558 [Sup.Ct. Kings Co.2004]; Deutsche Bank Trust v 120 Greenwich Development Associates, 7 Misc.3d I 006(A), 2005 WL 782810 [Sup.Ct., N.Y. Co.2005]). It is recognized that a RP APL § 881 license need not be routinely granted and that the court is required to consider the competing interests of the two adjoining landowners before reaching its conclusion whether to do so (Chase Manhattan Bank v Broadway, Whitney Co., 59 Misc.2d 1085 (Sup.Ct. Queens Co.1969]). The court must also consider the interests of the public at large (Jn re: ALM Properties, Inc., NYLJ 11/ 1/04, p. 19, col. 1 [Sup.Ct. Kings Co.]). Moreover, even when a license is granted, the court may order the petitioner to fulfill additional terms and conditions (Sunrise Jewish Center ofValley Stream v Lipka, 61 Misc.2d 673 [Sup.Ct. Nass. Co.1969]); In re: ALM Properties, Inc. , supra. Conditions may include, among other things, posting a bond, obtaining insurance coverage, agreeing to indemnify the adjacent landowner and/or paying for the use of the license (Deutsche Bank Tr. v 120 Greenwich Dev. Assoc., 7 Misc 3d 1006(A) [Sup Ct 2005]). The statute itselfrequires the licensee to pay damages. In opposition and in a combined cross-motion, respondents seek a declaratory j udgment holding that an easement by necessity or by agreement exists for the benefit of respondents' property; denial of the RP APL §881 petition in its entirety or, in the alternative for an award to respondent of reasonable license fees while assuring that respondents' easement rights will remain unprotected; and for dismissal of the action on the grounds of res adjudicata and collateral estoppel, pursuant to CPLR 3211 [a][5]. Petitioner established its prima facie entitlement to judgment as a matter of law. In particular, petitioner's proof established that the respondents never actually used petitioner's property as a driveway, or to access off-street parking. It is long established that the party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence (see Huggins v Castle Estates, Inc., 36 NY2d 427, 430 [ 1975]), that there was a unity and subsequent separation of title, and that at the time of severance an easement over [the servient estate's] property was absolutely necessary (Stock v Ostrander, 233 AD2d 816, 817-818 [3d Dept 19916]). Significantly, "the necessity must exist in fact and not a mere 4 Pnntcd t 1115l2019 [* 5] 911/2018 ORDER S1GllEO SEQUENCE '1 Pagt5 ol8 convenience, and must be indispensable to the reasonable use for the adjacent property" (Simone v Heidelberg, 9 NY3d 177, 182 [2007]). Here, the respondents' sole claimed "necessity" for the easement is the "need" to access off-street parking. Notably, photographs ofthe area depict the absence of a driveway or parking area on the respondent's property and the rear section of that property is not accessible over the land upon which the respondents seek an easement. In any event, the purported need is nothing more than a mere convenience. No easement by necessity is present here (Simone v Heidelberg, supra at 182). Furthermore, the petitioner's showing is sufficient to show, prima facie, that the respondents did not actually use petitioner's property in an open, notorious, and adverse manner (see Smiley Realty of Brooklyn, LLC v Excello Film Pak, Inc., 67 AD3d 891, 892 (2d Dept 2009); Merriam v 352 W. 42nd.St. Corp., 14 AD2d 383, 387 [, 221 N.Y.S.2d 82). In opposition, the respondents failed to rai se a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [ 1986)). Accordingly, the branch of the cross-motion which seeks a declaration that an easement exists on the property is denied. Section 881 provides that a license shall be granted " upon such terms as justice requires." Such terms as justice requires extends to the nature and extent of access that is necessary, the duration such access may be necessary, as well as what protections may be necessary to safeguard the adjo ining owner's property. The statute and case Jaw provide that the petitioner is strictly liable for any damage they may cause to the respondents' property (RP APL 881; Sunrise Jewish Center of Valley Stream Inc. v Lipko, 61 Misc.2d 673, 305 N.Y.S.2d 597 [Sup.Ct., Nassau, 1969)); MK Realty Holding LLC v Scneider, 39 Misc.3d l 209(A), 2013 WL 1482745 [Sup.Ct., Queens, 2013]). Nonetheless, the court is not limited to requiring bonds and insurance to ensure that the petitioner will able to compensate Respondent for any damage. Justice also requires that the terms of the license provide for safeguards to prevent damage from occurring (53 7 West 27th St. Owners LLC v Mariners Gate LLC, 2009 N.Y. Slip Op. 32360(U), 2009 WL 3400277 [Sup. Ct N.Y. County]). The risks and costs involved in the use that a petitioner makes of its neighbor's property should be wholly borne by the petitioner. Equity requires that the owner compelled to grant access should not have to bear any costs resulting from the access, including steps necessary to safeguard their property. 5 Pnnttd t111512019 [* 6] 9111201& ORDER S•GIJD SEQUENCE 11 Page e a In this regard, it is duly noted that Section 881 compels a property owner to grant access for the benefit of another. The respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it. The Court is mindful of the fact that it is called upon to grant access after the parties have failed to reach an agreement, and must not allow either party to overreach and use the Ccourt to avoid negotiating in good faith. Cross-Motion The branch of the cross-motion which is to "assign" the Order to Show Cause application to a particular justice is denied. Inasmuch as the application is not one "for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify,'' there is no basis to assign the instant application to a prior judge (see CPLR 2221 ). The branch of the cross-motion which is for a declaratory judgment granting an easement by necessity for the benefit of the respondents' property is denied for reasons noted above. The branch of the cross-motion which is for an award to respondents of reasonable license fees is granted to the extent that a hearing shall be had after the conclusion of the license to determine reasonable fees. The branch of the cross-motion which is to dismiss the matter pursuant to CPLR 3211 [a][5] is denied. "Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 321 l(a)(4) on the ground that there is another action pending" (Stevens v Law Off ofBlank & Star, PLLC, 155 AD3d 917, 918 [2d Dept 2017]; Scottsdale Ins. Co. v Indemnity Ins. Corp. RRG, 110 AD3d 783, 784 [2d Dept 2013); see Whitney v Whitney, 57 NY2d 731, 732 [1982); DAJJ, Inc. ,, Roth, 85 AD3d 959, 959 [2d Dept 2011]). "The critical element is that both suits arise out of the same subject matter or series of alleged wrongs" (Cherico, Cherico & Assoc. v Midollo, 67 A03d 622, 622 [2d Dept2009], 886 N.Y.S.2d 914 [internal quotation marks omitted] ). Here, while the respondents proffer that there is another action pending at this time which arises from the same subject matter and alleged wrongs, and involved the same parties, they did not provide an index number of the same and the court is unable to verify this claim independently. Accordingly, the branch of the cross-motion which seeks 6 ?onttd 1111512019 [* 7] 91112018 ORDER SIGUED SEQUENCE I\ Page7ol8 dismissal, pursuant to CPLR 3211 [a)[4], is denied (compare Matter of Willnus, IO 1 A03d 1036, 1037 (2d Dept 2012] (petition was properly dismissed on basis of pending guardianship proceeding); DAIJ, Inc. v Roth, 85 AD3d at 960 (court properly dismissed action where there was an[other] action pending in the Civil Court of the City of New York where both arose from the same subject matter and alleged wrongs, and involve substantial identity of the parties and similarity of claims); Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 623 (The issues raised and relief sought by the complaint in the instant action were substantially the same as the issues raised and relief sought in the pending action-namely, a determination as to whether the plaintiff was entitled to collect legal fees from the defendant, and, if so, the amount of those fees). Accordingly, it is hereby: ORDERED, that petitioner's application for a license to enter upon respondents' property, located at 23-29 Astoria Boulevard, Astoria, New York 11103, pursuant to RPAPL §881 on the terms and conditions set forth in the petition, is granted; and it is further ORDERED, that petitioner shall have the right to enter respondents' property, located at 23-29 Astoria Boulevard, Astoria, New York 11103, for a period of thirty (30) days following the issuance of all necessary permits from the New York City Department of Buildings for the demolition and renovation of petitioner's real property, located at 23-31 Astoria Blvd., Astoria New York 11103, for the purpose of detaching respondents' awning from the petitioner's building and installing any support[s] necessitated by said detachment; and it is further ORDERED, that petitioner shall bear all costs for (I) said awning detachment, (2) installation of any necessary awning support, and (3) the repair of any damages that may be caused by said awning detachment and installation of support[s]; and it is further ORDERED, that after petitioner has entered and performed the necessary removal of the awning, a hearing at the conclusion of the license will be had to assess monetary damages, in accordance with RPAPL §881. The Court is not at this time limiting any theory 7 Pnnttd 1111512019 [* 8] 911/2018 ORDER S'GllEJ SEQUENCE '1 Page e o1 e of damages and/or reasonable conditions to granting the license, including whether the respondents are entitled to be compensated for the use of the license granted by the Court; and it is further ORDERED, that the branch of the cross-motion which is to "assign" the Order to Show Cause application to a particular justice is denied; and it is further ORDERED, that the branch of the cross-motion which is for a declaratory judgment granting an easement by necessity for the benefit of the respondents' property is denied for reasons noted above; and it is further ORDERED, that the branch of the cross-motion which is for an award to respondents of reasonable license fees is granted to the extent that a hearing shall be had after the conclusion of the license to determine reasonable fees; and it is further ORDERED, that the branch of the cross-motion which is to dismiss the matter pursuant to CPLR 3211 [a][ 5] is denied; and it is further ORDERED, that the branch of the cross-motion which seeks dismissal, pursuant to CPLR 321 l[a][4], is denied; and it is further ORDERED, that any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied The forgoing constitutes the decision and order of the Court. Dated: July 16, 2018 ~FFICY,J.S.C.

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