BGB Realty LLC v Arec 13, LLC

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BGB Realty LLC v Arec 13, LLC 2018 NY Slip Op 34467(U) September 28, 2018 Supreme Court, Westchester County Docket Number: Index No. 50200/16 Judge: David F. Everett 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. FILED: WESTCHESTER COUNTY CLERK 09/28/2018 03:33 PM NYSCEF DOC. NO. 142 INDEX NO. 50200/2016 RECEIVED NYSCEF: 09/28/2018 To commence To commence the the 30-day 30-day statutory statutory time time period period for appeals appeals as of of right right under under CPLR CPLR 55 5513 l 3 (a), (a), you you are advised advised to serve serve a copy with notice upon all parties. copy of of this order, order, with notice of of entry, entry, upon parties. SUPREME NEW YORK YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW COUNTY WESTCHESTER COUNTY OF WESTCHESTER -----------------------------------------------------------------X -----------------------------------------------------------------)( BGB REALTY 8GB REALTY LLC, LLC, Plaintiff, Plaintiff, Index No. 50200/]6 Index No. 50200/16 Motion Sequence Sequence No. 004 Motion Decision and Order Order Decision -against-againstAREC 13, LLC, Qefendant. J?efendant. -----------------------------------------------------------------X -----------------------------------------------------------------)( EVERETT, EVERETT, J. following papers motion: The following papers were read on the motion: Notice of Motion/Affirmation Supp/Exhibits 1-9/Memorandum I -9/Memorandum of of Law/Exhibit Notice of Motion/Affirmation in Supp/Exhibits Law/Exhibit 111-122) ((docs docs 111I 22) Affirmation Opp/Exhibits A-H/ of Serv (docs (docs 126-135) 126-135) Aff of Affirmation in Opp/Exhibits A-H/ Aff 7-140) Affirmation/Exhibits 10-12 ((docs docs 13 Reply Affirmation/Exhibits 137-140) In this action sounding sounding in adverse adverse possession possession under Article 15 of of the the RPAPL, this action under Article RP APL, plaintiff plaintiff , BGB Realty (BGB) moves order, pursuant CPLR 3025 (b), granting granting it leave leave to 8GB Realty LLC (8GB) moves for an order, pursuant to CPLR amend its complaint complaint to add a cause cause of of action action under under the doctrine doctrine of of practical location. Defendant Defendant practical location. amend AREC 13, LLC (AREC) AREC (AREC) opposes opposes the motion ground that it would prejudiced by this motion on the ground would be prejudiced this belated assertion of of a new cause of of action action on the eve of of trial. Upon foregoing papers, papers, the belated assertion new cause Upon the foregoing motion motion is denied. denied. following facts are taken taken from the pleadings, pleadings, motion affidavits, documentary documentary The following motion papers, papers, affidavits, evidence and the record, otherwise indicated. indicated. evidence record, and are undisputed undisputed unless unless otherwise Plaintiff commenced the instant instant action action by filing a summons summons and complaint complaint in the Office Office Plaintiff commenced of the Westchester County Clerk Clerk on June I I, seeking seeking a judicial declaration granting granting it sole of Westchester County June 22, 20 2011, judicial declaration possession of a parcel of land located located at or near Town of of North Castle, parcel ofland near 1I Virginia Virginia Road in the Town North Castle, possession of [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 09/28/2018 03:33 PM NYSCEF DOC. NO. 142 INDEX NO. 50200/2016 RECEIVED NYSCEF: 09/28/2018 New service of of AREC's answer on August 4, 201 I. No New York. Issue Issue was joined joined by service AREC's answer August 4,2011. No request request for judicial intervention (RJI) or for a preliminary preliminary discovery discovery conference conference was filed with with the Court Court judicial intervention prior defense counsel's counsel's filing filing of of same same on December December 1, 2015. 2015. The The parties conducted prior to defense parties then then conducted discovery pursuant January 7, 2016 preliminary conference conference order order and and multiple follow-up 2016 preliminary multiple follow-up discovery pursuant to the January compliance orders, orders, and on July 19, 19,2017, BOB filed a note of issue certificate of of readiness compliance 2017, BGB note of issue and certificate readiness attesting attesting to the completion completion of of all known known discovery. discovery. By order order to show show cause cause filed on May 15, IS, 2018, order substituting substituting 2018, BOB BGB moved moved for an order Americo Company for defendant, defendant, and for a declaration declaration that the complaint complaint Americo Real Estate Estate Company encompasses a claim claim for title title by practical f9r leave leave to amend amend the the complaint complaint to allege allege encompasses practical location, location, or fi?r doctrine of of practical location. By order order of of the Honorable practical location. Honorable Nicholas Nicholas a claim based on the doctrine Colabella dated dated May 24, 2018, 2018, the motion show cause granted only only to the extent extent was granted Colabella motion by order order to show cause was of vacating the note note of issue, and referring referring the case back back to the compliance of vacating of issue, compliance conference conference part. By notice of motion dated June BOB filed, via NYSCEF, motion dated June 4, 2018, 2018, 8GB NYSCEF, the instant instant noticeofmotion notice of motion for notice of ~ 1, 2018, leave to amend amend the complaint complaint to add the additional additional cause cause of of action. action. Thereafter, Thereafter, on !July iJuly 31, 2018, Lefkowitz so ordered readiness referee Attorney Honorable Joan Joan B. Lefkowitz ordered the trial readiness referee report report of of Court Court Attorney the Honorable Millner dated 3018, directing BGB to file a note note of issue and Referee .Jeannette Referee Jeannette M. Millner dated July July 30, 30,3018, directing BOB of issue certificate of of readiness of entry of of the order, order, and set forth forth the schedule schedule for the certificate readiness within within 20 days of of any summary summary judgment BOB then of issue judgment motions motions in this matter. matter. 8GB then filed the note note of issue and filing of certificate of of readiness certificate readiness on August August 22, 2018. 2018. With respect BOB contends contends that, while complaint does respect to the motion, motion, BGB while the complaint does not specifically specifically allege that that it acquired acquired title to the disputed disputed parcel of practical allege parcel by practical practical location, location, the doctrine doctrine of practical location offshoot of of an adverse adverse possession claim, and the factors factors supporting supporting this additional possession claim, this additional location is an offshoot 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 09/28/2018 03:33 PM NYSCEF DOC. NO. 142 INDEX NO. 50200/2016 RECEIVED NYSCEF: 09/28/2018 --, gleaned from the complaint camplaint as originally ariginally filed, and from depasitian claim can be gleaned deposition testimany. testimony. BGB also also. contends cantends that wauld nat seriausly prejudiced amendment. that AREC AREC '.vould not be seriously prejudiced by allawing allowing the amendment. explains, is because dactrine of af practicallacatian This, BGB explains, because the doctrine practical location - which which recagnizes recognizes the practical practical location boundary line and the acquiescence to that baundary boundary line by the parties parties for period lacatian of af a baundary acquiescence to.that far a peri ad af time in excess excess of af the statutory statutary periad gaverning adverse adverse passessian of period governing possession - adds adds no. no new new facts to.the to the issues related claim and the particular fence demarcating case, and because because all issues related to.the to the claim particular fence demarcating the barder border afthe addressed during discavery. of the disputed disputed parcel, parcel, have have been been addressed during discovery. In its opposition appasitian to. aut that actian, as cammenced to the matian, motion, AREC AREC paints points out that the action, commenced in 2011,' 2011, 1 allege a claim claim related to.practical did nat not allege related to practical lacatian, location, that that BGB BGB taak took no. no steps steps to.prosecute to prosecute the actian action between cam men cement and the preliminary canference, effectively effectively abandaning between commencement preliminary conference, abandoning it, and that, canference \vas was held in January January 2016 af AREC's filing of afaa 2016 ((as as a result result of AREC' s filing since the preliminary preliminary conference request far judicial interventian), the parties have appeared caurt same request for judicial intervention), parties have appeared in court some 28 times, times, withaut without BGB BGB af adding adding a claim claim based an practical lacatian. AREC also. paints based on practical location. AREC also points aut out ever raising raising the passibiiity possibility of that it wauld af issue amendment, as it has already tardy, past post nate note of issue amendment, already would be prejudiced prejudiced by this tardy, canducted extensive extensive and expensive expensive discovery disc avery on an issues adverse passessian claim, conducted issues relating relating to. to the adverse possession claim, but did nat an opportunity appartunity to.canduct discavery on an a practical to conduct discovery practical lacatian location claim, claim, which, which, not have an cantrary to. a,ssertian, encompasses encampasses elements elements which separate and apart apart from an adverse adverse contrary to BGB's BGB's a,;;sertion, which are separate passessian claim. possession claim. Under pleading, or setting Under CPLR CPLR 3025 (b), "[a] party may amend amend his pleading, ar supplement supplement it by setting farth additional additianal or ar subsequent subsequent transactians ar occurrences, accurrences, at any time leave of af court caurt or ar by forth transactions or time by leave , The actian, originally ariginally assigned assigned Westchester Caunty Index 12381/11, was converted canverted The action, Westchester County Index No., No, 12381/11, to.electronic filing, under assigned Westchester Westchester County Caunty Index 50200/16, to electronic filing, under NYSCEF, NYSCEF, and assigned Index No.. No. 50200/16, fallawing completion campletian of af the preliminary canference stipulation. stipulatian. following preliminary conference 1 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 09/28/2018 03:33 PM NYSCEF DOC. NO. 142 INDEX NO. 50200/2016 RECEIVED NYSCEF: 09/28/2018 '. stipulation of of all parties. settled that, while while "[!]eave "[I]eave shall shall be freely freely given," "mere stipulation parties. It is well well settled given," and "mere lateness amendment," the question question of of whether lateness is not a barrier barrier to the amendment," whether to grant grant the proposed proposed amendment is a matter of the court's court's discretion discretion (Edenwafd (Edenwald Con(!'. Conll'. Co. v Cily City of of New amendment matter of New York, 60 NY2d [1983] [internal [internal quotation citation omitted]; omitted); CPLR CPLR 3025 [b]). NY2d 957, 959 [1983] quotation marks marks and citation BGB's claim for adverse adverse possession evidence that been BGB's claim possession requires requires evidence that its possession possession has been hostile, actual, exclusive, exclusive, open open and notorious, continuous for the 10-year 1O-year statutory statutory period hostile, actual, notorious, and continuous period APL Article claim for adverse adverse possession, claim based practical location' (RP APL Article 15). Unlike Unlike a claim possession, a claim based on practical location2 requires proof that that the claimed claimed boundary clearly marked, requires proof boundary line has been clearly marked, and that that there there has been been mutual acquiescence acquiescence to that adjoining owners/parties owners/parties "sue~ "such that it is that boundary boundary line by the adjoining definitely and equally equally known, known, understood settled" by them them for more statutory period definitely understood and settled" more than the statutory period (Jakubowicz v Solomon, 852-853 [2d Dept [internal quotation quotation marks (.Jakubowicz Solomon, 107 AD3d AD3d 852, 852-853 Dept 2013] 2013] [internal marks and citations omitted]). omitted]), In view of the differing differing elements elements of of proof claims, the citations view of proof with respect respect to these these claims, Court cannot cannot find that that AREC of discovery tailored to its AREC would would 110tbe i10t be prejudiced prejudiced by the lack of discovery tailored Court defense to the proposed claim, defense proposed practical practical location location claim. additional factor factor weighing favor of of denial ofleave amend, is the absence absence of of an weighing in favor denial of leave to amend, ·An additional explanation for BGB's BGB's failure failure to: (1) (I) prosecutethe action for the immediate after explanation prosecute.the action immediate five year year period period after commencement; (2) prosecute action until the defendant defendant moved case forward forward by filing filing the commencement; prosecute the action moved the case RJI seeking a preliminary discovery conference;.and conference; and (3) raise the possibility of pursuing R.11 and seeking preliminary discovery possibility of pursuing a practical claim until well over over two years after discovery discovery had commenced commenced in January January practical location location claim years after Under "this doctrine, doctrine, a practical of a boundary acquiescence therein Under "this practical location location of boundary line and an acquiescence therein statutory period conclusive of of the location such boundary ... although although location of of such boundary ... for more than the statutory period is conclusive according to the calls calls of of the deeds deeds of adjoining Iine according of the adjoining such line may not in fact be the true line owners" (Hazen (Hazen v Hazen, 697-698 [3d Dcpt Hazen, 26 AD3d AD3d 696, 697-698 Dept 2006]). 2006]). ovmers" 2 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 09/28/2018 03:33 PM NYSCEF DOC. NO. 142 INDEX NO. 50200/2016 RECEIVED NYSCEF: 09/28/2018 , :: some 10 months after it attested completion of 2015, and some months after attested to the completion of all known knovm discovery discovery when it filed issue and certificate readiness on July 19,201 Where, as here, "the a note of of issue certificate of of readiness 19,2017.7. Where, "the application application for leave to amend amend is made made long long after after the action action has been certified certified for trial, trial, judicial judicial discretion'in discretion in allO\ving such amendments amendments should prudent, and cautious" allowing should be discrete, discrete, circumspect, circumspect, prudent, cautious" (American (American American Int!. Intl. Specialty Lines Ins. Co., AD3d 792, 794 [2d Dept Dept 2009] Cleaners, Inc. v American Cleaners, Inc. Specialty Lines Co., 68 AD3d 2009] [internal quotation quotation marks citations omitted]). omitted]). Furthernlore, "when ... ... leave sought on the the. . leave is sought [internal marks and citations Furthern1ore, "when of trial, judicial discretion should should be exercised sparingly" (id.). (id.). eve of judicial discretion exercised sparingly" Upon of the record submission, and consideration of the parties' arguments, Upon review revinv of record on submission, consideration of parties' arguments, provide a reasonable reasonable explanation the Court Court finds that 8GB BGB has failed to provide explanation for failing failing to seek leave leave to amend its complaint complaint to add a claim factors, which claim based on factors, which it had knowledge knowledge of, or, with reasonable should have had knowledge of (the existing existing fence), waited fence), but inexplicably inexplicably waited reasonable diligence, diligence, should knowledge of make its application. until long after after the case case was certified certified for trial to make application. Accordingly, it is Accordingly, ORDERED that plaintiffs motion is denied. denied. ORDERED plaintifrs motion This constitutes decision and order order of of the Court. Court. constitutes the decision Dated: White New York York White Plains, Plains, New September 28, 28,2018 September 2018 ENTER: ENTER: ~.?~ ... ~pj~ HaN. A.J.S.c. HON. DAVID DA YID F. EVERETT, EVERETT, A.J.S.C. Filed via NYSCEF NYSCEF William William L. Barish, Barish, Esq. Brand Glick & Brand, P.c. Brand, P.C. 5 [* 5] 5 of 5

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