217 Franklin LLC v ZG Franklin LLC

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217 Franklin LLC v ZG Franklin LLC 2020 NY Slip Op 34373(U) December 22, 2020 Supreme Court, Kings County Docket Number: 512278/2020 Judge: Kathy J. King 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: 1] KINGS COUNTY CLERK 12/28/2020] INDEX NO. 512278/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/05/2021 At an IAS Term, Part 64 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 22nd day of December, 2020. PRES ENT: HON. KATHY J. KING, Justice. -------------------------------------X 217 FRANKLIN LLC, Petitioner, DECISION/ORDER Index No. 512278/2020 - againstZG FRANKLIN LLC, Respondent. -------------------------------------X The following papers number 1 to 3 read herein: Notice of Motion and Affidavits (Affirmations) Annexed Opposing Affidavits (Affirmations) Papers Numbered 1-2 3 Petitioner moves by order to show cause for an access order to the adjacent premises owned by Respondent pursuant to RPAPL 881 (Mot. Seq# 1). Respondent cross-moves to dismiss petitioner's petition under CPLR 321 l(a)(4), CPLR 321 l(a)(7), and CPLR 321 l(a)(8) (Mot. Seq# 2). Petitioner is the owner and developer of the lot located at 217 Franklin Street, Brooklyn, New York. Respondent ZG Franklin LLC is the owner of the adjacent premises located at 219 Franklin Street, Brooklyn, New York (the "Adjacent Premises"). Petitioner requires access to the adjacent premises in order to construct a six-story residential building and makes the within application based on respondent's refusal to provide said access. 1 of 4 [*[FlLED: 2] KINGS COUNTY CLERK 12/28/2020] INDEX NO. 512278/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/05/2021 The Court shall first address respondent's cross-motion to dismiss the petition, since the relief requested in the petition would be deemed moot, ifthe respondent's motion is granted. Under CPLR 3211, a party may move for judgment dismissing one or more causes of actions asserted against him on certain enumerated grounds including another action pending in any state (CPLR 3211 (a)(4); ... that the complaint fails to state a cause of action (CPLR 3211(a)(7); .... and, that the court lacks jurisdiction CPLR 321 l(a)(8). On a motion to dismiss, pursuant to CPLR 3211, the Court must accept as true the facts as alleged in the complaint and submissions, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged, fit within any cognizable legal theory (see Leon v. Martinez, 84 N. Y.2d 83, 614 [1994 ]). It well settled that "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one"(Jd. at 88). Respondent's motion to dismiss the petition pursuant to CPLR 321 l(a)(4) is denied. "Pursuant to CPLR 321 l(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same" (Cooper v Bao Thao, 162 AD3d 980, 981 [2d Dept 2018]). Here, an action entitled 217 Franklin LLC v ZG Franklin LLC was commenced by petitioner, bearing Index No 514699/2020 ("the Second Action") which alleged a cause of action sounding in encroachment. Upon review of the within action and the Second Action, the Court finds the two actions are not sufficiently similar, since the Second Action is a plenary action seeking monetary relief and/or declaratory judgment, and, the within action is a special proceeding for equitable relief seeking an access order to the adjacent premises for a pre-construction 2 2 of 4 survey and installation of temporary -------~--::---~.~- . [*[FILED: 3] KINGS COUNTY CLERK 12/28/2020] INDEX NO. 512278/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/05/2021 protections. Since the relief sought in the instant action and the Second Action are not sufficiently similar, dismissal is not warranted. Respondent's cross-motion to dismiss the petition pursuant to CPLR 321 l(a)(7) is granted to the extent of dismissing the branch of the petition regarding extension of the chimney flues. The Court finds that constructing an extension of the chimney flues constitutes a permanent encroachment on respondent's property contrary to the intent of RP APL 881 (see Matter of N 78 Inv'rs, LLC v Newgarden, 43 Misc 3d 623, 634-35 [Sup Ct 2014]). In all other respects, respondent's cross-motion is denied. Respondent's motion to dismiss pursuant to 321 l(a)(8) is denied. Petitioner's affidavit of service by personal delivery to the registered agent with the secretary of the state constitutes prima facie evidence of proof of service to respondent pursuant to CPLR 311-a. Since the Court has not dismissed the instant petition, the Court shall now consider petitioner's order to show cause for a temporary license and access order. In support of the requested relief, petitioner submits an affidavit of petitioner's engineer, which establishes that improvements are being made as part of petitioner's construction project and cannot be property. Accordingly, petitioner's of permitting a temporary completed order to license pursuant to without show RP APL cause access is granted 881 for respondent's to to petitioner to the extent enter upon respondent's property at 219 Franklin Street, Brooklyn, New York as follows: 1) for the purposes of conducting a photographic pre-construction survey; installing, maintaining, and removing of minimally invasive monitoring equipment including, without limitation, crack monitors, optical monitoring survey points and/or vibration monitors; 2) installing, maintaining, and removing of a shed and/or pipe scaffolding in the front of the rear yard, and on the rooftop of the adjacent 3 3 of 4 [*[FILED: 4] KINGS COUNTY CLERK 12/28/2020] INDEX NO. 512278/2020 • NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/05/2021 premises; and 3) installing, maintaining, and removing weatherproof protections and airspace usage. The license shall be in effect for 18 months from the date of this order. In all other respects, petitioner's order to show cause is denied (Mot. Seq# 1). Respondent's cross-motion to dismiss is granted to the extent of dismissing the portion of the petition seeking to construct an extension of the chimney flues. In all other respects, respondent's cross-motion is denied (Mot. Seq# 2). ENTER, XrU~ HON. KATHY J. KING J.S.C HON. KATHY J. KlNG JSC 4 4 of 4 ,.. ~-. ~.,f \j-. t;.. ._...... .....•~J· _.. ~'

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