Serafin Props., LLC v Amore Enters., Inc.

[*1] Serafin Props., LLC v Amore Enters., Inc. 2018 NY Slip Op 50142(U) Decided on February 6, 2018 Supreme Court, Erie County Walker, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 6, 2018
Supreme Court, Erie County

Serafin Properties, LLC, Plaintiff,

against

Amore Enterprises, Inc., Defendant.



2014-813198



ZDARSKY, SAWICKI & AOSTINELLI, LLP

Guy J. Agostinelli, Esq., Of Counsel

Attorneys for Plaintiff

LEWANDOWSKI & ASSOCIATES

Kimberley M. Thrun, Esq., Of Counsel

Attorneys for Defendant
Timothy J. Walker, J.

Plaintiff, Serafin Properties, LLC ("Serafin"), commenced this action on November 14, 2014, seeking, inter alia, a prescriptive easement in a portion of Defendant, Amore Enterprise, Inc.'s, ("Amore Enterprise") abutting real property. The non-jury trial of this matter proceeded on November 6, 9, and 13, 2017. The Court heard testimony from nine (9) witnesses and admitted seventy-eight (78) exhibits into evidence.

Pursuant to CPLR 4213(a), the parties submitted their respective proposed findings of fact, as well as post-trial memoranda of law.

Prior to trial, both parties applied, pursuant to CPLR §3212, for summary judgment; Defendant having made the initial application and Plaintiff having cross-moved. The Court issued a detailed Decision and Order, dated September 5, 2017 (the "Decision and Order").

In the Decision and Order, the Court found the following facts to be undisputed:

• Plaintiff owns commercial real property located at 4388 Broadway, in the Village of Depew, New York ("Plaintiff's Property") (Decision and Order, pp. 1 and 2).• Defendant owns commercial real property at 4396 Broadway, in the Village of Depew, New York ("Defendant's Property") (Id., at p. 2).• The parties' respective properties abut each other, and are located in a small industrial park consisting of four (4) commercial parcels; that is, their respective properties and two (2) others that are owned by non-parties (the "Industrial Park") (Id.).• Plaintiff purchased Plaintiff's Property on January 1, 2007 from its affiliate, QMC Technologies, Inc. ("QMC") (Id.). • Defendant purchased Defendant's Property in June 1997 (Id.). • The properties' respective boundaries are not in dispute (Id.).• The dispute in this matter arises out of Plaintiff's use of an approximate 30 foot strip of Defendant's Property (the "Driveway"). Plaintiff seeks a prescriptive easement in the Driveway (Id.).• Plaintiff's Property is not land-locked, and Plaintiff has access to it without having to use the Driveway (Id.).• QMC purchased Plaintiff's Property from Allied Building Products, Inc. ("Allied") in September 2005. The purchase and sale contract between QMC and Allied provides that "there are no unrecorded liens, easements, rights of way, licenses, restrictions, or other encumbrances affecting the property" (Id.).• There is no survey that depicts an easement in the area of the Driveway (Id.).

Moreover, in the Decision and Order, the Court determined, inter alia, that:

• Plaintiff "bears the initial burden of showing, by clear and convincing evidence, that its use was 'adverse, open and notorious, continuous, and uninterrupted for the prescriptive period,' which is ten (10) years" (Id., at p. 3); and• "Where the party seeking a prescriptive easement establishes an open, notorious, and continuous use of property for the prescriptive period, a presumption arises that such use was hostile. Where the presumption of a hostile use arises, the burden shifts to the owner of the servient estate - here Defendant, to show that the use was permissive. The presumption of hostility has arisen in this matter" (Id.) (Internal citations omitted)(emphasis added).

Having further found that "[m]aterial issues of fact exist regarding whether Plaintiff's use of the Driveway during the prescriptive period was hostile or permissive" (Id., at p. 5), the Court directed that "the sole issues to be tried are whether Plaintiff's use of the Driveway was hostile or permissive during the prescriptive period, and, if the Court finds and declares that a prescriptive easement has been established, the amount Defendant shall be compensated for Plaintiff's past and future use of the Driveway" (Id., at p. 6).

Accordingly, the first of only two (2) issues to be decided at trial was whether Plaintiff's use of the Driveway was hostile or permissive, with the second and final issue (regarding compensation) to be decided only if the Court determined that the use was hostile.

The parties' respective proposed findings of fact and memoranda of law are lengthy, overly detailed, and largely superfluous, because they address issues well beyond the scope of the very narrow issues to be decided at trial [FN1] .

Having rendered the Decision and Order and presided over the trial, and after due consideration of the trial testimony and exhibits admitted into evidence, and the post-trial submissions, the Court finds that Plaintiff's use of the Driveway was permissive.

The Court denied the parties' respective dispositive motions, because the resolution of whether Plaintiff's use of the Driveway was hostile or permissive "lies largely with the Court's assessment of the credibility of party witnesses, which precludes the granting of summary judgment to either party (Rew v. County of Niagara, 115 AD3d 1316 [4th Dept 2014])" (Decision and Order, p. 5).

The Court finds the trial testimony of Defendant's President, Gaetano ModicaAmore, to be particularly credible on the issue of use. In this regard, Mr. ModicaAmore testified as follows:

• He understood that George K. Hambelton, Jr., predecessor in interest of Defendant's Property, had given permission to the Plaintiff's predecessor in interest to access the Driveway (November 9, 2017 Transcript, pp. 156-57);• Prior to purchasing Defendant's Property, he attended a meeting of the Village of Depew Village Board regarding an occupancy permit, at which representatives of other members of the Industrial Park were present. At that meeting, Mr. ModicaAmore confirmed that, upon purchasing Defendant's Property, he would continue to permit the other members of the Industrial Park to use the Driveway, "like they had been using it . . . [a]s long as there was some camaraderie, some chipping in of . . . what needed to be done to repair it" (November 6 Transcript, pp. 64 and 72).• In approximately 2010 or 2011 (several years after Plaintiff purchased Plaintiff's Property), Mr. ModicaAmore had a conversation with James Serafin, Plaintiff's President, and participated in a meeting with Mr. Serafin and representatives of other businesses in the Industrial Park, at which time Mr.ModicaAmore confirmed that Plaintiff's predecessor in title had been permitted to use the Driveway, because it assisted with snow removal and maintenance, and that Plaintiff would be permitted to continue to use the Driveway under the same conditions (Id., at pp. 86-90).

Mr. ModicaAmore's testimony regarding the historical use of the Driveway is consistent with the following testimony of non-party members of the Industrial Park:

• Peter Gaglio was employed by Keystone Builders Supply Company, Inc. ("Keystone") from 1992 through approximately 2002 or 2003 (Id., at p.20). Keystone is a predecessor in title to Plaintiff's Property (Trial Exhibits 6-10), and while employed by Keystone, Mr. Gaglio worked at the site that is now Plaintiff's Property (November 6, 2017 Transcript, p. 20). With respect to the Driveway, Mr. Gaglio testified that there were no disputes over it and that all of the businesses within the Industrial Park used it amicably (Id., at [*2]pp.43-44). • Mark LaPenta was employed by Quality Inspection Services ("QIS"), one of the other businesses located at the Industrial Park from November 5, 2004 through July 31, 2015 (Trial Exhibit 12; November 9, 2017 Transcript, p. 28). Mr. LaPenta was employed by QIS at the Industrial Park from approximately 2004 to 2013 ( November 9, 2017 Transcript, p. 29). QIS owned a strip of land approximately 12 feet wide, which was adjacent to the Driveway (Id., at p.32). Mr. LaPenta testified that QIS owned such 12 foot strip, Defendant owned the Driveway, and all of the other businesses in the industrial park were permitted to use these adjacent parcels as "a courtesy" and "[t]hat's what we just always agreed upon" (Id, at p. 33).

Nonparty witnesses' use of words and phrases like "no disputes over it" (Mr. Gaglio), and "courtesy" and "agreed upon" (Mr. LaPenta), connote a permissive - not hostile, use, and are consistent with Mr. ModicaAmore's testimony.

The determination of credibility in a non-jury trial shall be left to the Court's discretion (Mercone v. Monroe County Sheriff's Association, Inc., 90 AD3d 1698, 1699 [4th Dept 2011][where the findings of fact in a non-jury trial rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court's credibility determinations]). The Court had an opportunity to observe Messrs. ModicaAmore, Gaglio, and LaPenta testify at trial, and they all appeared credible and to be testifying truthfully.

Moreover, Mr. ModicaAmore's (and Messrs. Gaglio's, and LaPenta's) testimony is also consistent with the letter from Mr. Hambleton's attorneys (Magavern, Magavern & Grimm) to Ward Sievenpiper, President of Doralco, Inc. (predecessor in interest to Plaintiff's Property), dated January 11, 1995. This letter constitutes objective, credible evidence that Mr. Sievenpiper's use of the Driveway was permissive. It states in relevant part, that:

As you know, our client has allowed you and your tenants to use a portion of this driveway for ingress and egress . . . [and] [w]e want to reiterate and make clear that there is no easement benefitting the property at 4388 Broadway [i.e., Plaintiff's Property] over Mr. Hambleton's lands [i.e., Defendant's Property']" (Trial Exhibit 62) (emphasis added).

Accordingly, it is hereby

ORDERED, that Plaintiff does not currently have, nor has it ever had, a prescriptive easement in Defendant's Property; and it is further

ORDERED, that the preliminary injunction precluding Defendant from interfering with Plaintiff's use of the Driveway is hereby vacated; and it is further

ORDERED, that the Complaint is dismissed.

This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.

Dated: February 6, 2018

Buffalo, New York

____________________________________

HON. TIMOTHY J. WALKER, J.C.C.

Acting Supreme Court Justice Footnotes

Footnote 1:For example, the parties' respective proposed findings of fact regarding ownership of the properties within the industrial park are unnecessary, because the Court made such findings in the Decision and Order, which neither party challenged (either by way of motion pursuant to CPLR §2221, or an appeal )(see Plaintiff's proposed findings of fact 1-6 and Defendant's proposed findings of fact 2-11). Similarly, Plaintiff's proposed findings of fact regarding such matters as its operation at Plaintiff's Property and the manner in which it contends it uses the Driveway (see Plaintiff's proposed findings of fact 8-14) are irrelevant to whether Plaintiff's use of the Driveway was permissive. The Court did not considered these (or many similar) proposed findings of fact, nor was it required to do so based upon the Decision and Order.