RLR Invs., LLC v FMC Co.

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RLR Invs., LLC v FMC Co. 2021 NY Slip Op 31295(U) April 14, 2021 Supreme Court, Kings County Docket Number: 526739/19 Judge: Lawrence S. Knipel 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 04/15/2021 04:56 PM NYSCEF DOC. NO. 42 INDEX NO. 526739/2019 RECEIVED NYSCEF: 04/15/2021 At an IAS Tcr1n, Part Com1n 4 of the Supreme Court of the State of New York, held in and for the County of f(ings, at the Courthouse, at Civic Center, Brooklyn, New York, on the l4 1h day of April, 2021. PRESENT: HON. LA WREN CE KN!Pf.-:1,, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Rl,R INVESTMENTS, l_,f~C, Plaintiff, - against - FMC CC)MPANY and 17l\.1C Index No. 526739/19 l~N·rsRPRJSES, L,J_,C, Defendants. - - - - - - - - - - - - - - • - - - - - - - - - - - - - - - - - - - - - -X NYSCEI~ The follo\.ving c-filed papers read herein: Doc Nos. Notice ofMotion/()rclcr to ShO\.V Cause/ Petition/Cross Motion and Affidavits (Affir1nations) _ _ _ _ _ __ 14 16-26 Opposing Affidavits (Affirn1ations)._ _ __ 27-33 Upon the forcgoi11g papers in tl1is action for a declaratory judgrnent regarding a 1nutual drive\.VU)' casc111ent, plainti!1' l{Ll{ Invest1ncnts, Ll,C (JZI.R) niovcs (in 1notion sequence [)not. seq.] 011c) for an order, pursuant to CPLIZ 3211 (b), granting it aj11dg1nent on the· pleadings 011 Co11nt II oftl1e atnended co1nplaint. By a I;'cbruary 9, 2021 order, this court converted RI.,I< 's 1noti{}n (in 1not. seq. one) to a Cl)Lll 3212 1110Lion f<)r partial su1n1nary j11dg1ncnt on Count II o[ the co111plaint, pursuant to CJ)l,J{ 3211 (c). A1lcr conversion, the parties were provided an a1nple 1 of 8 [*FILED: 2] KINGS COUNTY CLERK 04/15/2021 04:56 PM INDEX NO. 526739/2019 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 04/15/2021 opportunity to st1pple1nent the record to sub1nit any evidence that could properly be considered either in support of or in opposition to Rl,I{' s su1n1nary judg1nent 1notio11. Bt1ckgro1111d On Decen1ber 9, 2019, J{l,R con11nenced this action against l~Mc Co1npany by filing a su1111nons and an unverified con1plaint. 'Thereafter, on January 15, 2020, RLR filed an amended complaint adding FMC Enterprises, LLC (FMC LLC), FMC's Company's succcSSl)r, as a defendant. The amended complaint alleges that RLR is the owner of the property at 512 Gardner Avenue in l3rookly11 (Ill,J{ I)ropcrty), which it leased to 1··ruclc-Ritc Distributions Syste1ns Cor1)oration ('fruck-I{ite) (a1nended con1plaint at i!il 4 and 8). FMC Co1npany a11d FMC L.LC arc the alleged O\vners of the adjacent property at 500 Gardner Avenue in Brookiy·n (l:;-MC I)roperty), \Vhich they leased to O!d Do1ninion Do1nii1ion) (id. at I~'rcight f~ine, Inc. (Old i1ir 5-6). 'fl1e a1nended co1nplaint alleges that "[t]here is a 1nutual drive\vay ease1nent JOr a strip of land t11at encotnpasses both a portion ofth-c RLR Property and a portion ol'the /FMCJ Property (the 'Easement') (id. at 119). l'hc a111endcd co1nplaint further alleges that, in June 2013, FMC CoJ11pany and Old Do1ninion executed a11 an1e11ded lease tl1at "purported to add t1se of the area governed by the Ease1ncnt ('l{l.,.R's I2asernent Property') to their lease fOr an additional rent pay1ncnt . . ." and "[i]n or about August 2015, RLR learned that FMC [Company] and/or Old 2 2 of 8 [*FILED: 3] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 42 INDEX NO. 526739/2019 RECEIVED NYSCEF: 04/15/2021 D<)Jninion \Vere parking trailers on, and blocking f-Ull access to, J{L,l{'s Easc1nent I)roperty" (id at1i~ 10-11). The ainended co111plaint alleges that, on or about Nove1nbcr 2, 2015, l{LR con1111enccd an action in the Kings Cou11ty S·upre1ne Court under i11dex No. 513477/15 asserting claiJns against fMC Co·1npany and Old Do1ninion for trespass and u11just enrichment (Prior Litigation) (id. at 11 13). During the Prior Litigation, FMC Company allegedly "asserted that it had obtained title to RLJ{ · s I~asement Property by way of adverse possession rbut] .FMC [Con1panyf llC\.'cr advised the Court that it had sold or transferred an)' o!'the prOJ)erty that \Vas at issue in the Prior Litigation fto F'MC LLC]" (id. at iJ 16.). C.ount II of the amended con1plaint alleges that, in the Prior 1,itigation, FMC Co1npany asserted a counterclaii11 alleging that it could not be liable for trespass because it obtained title to l{J,R's [..;:ase1nent l)roperty by adverse possession (the Counterclaiin) (id. at~ 29). FMC Company and Old Dominion allegedly moved to dismiss RLR's complaint in tl1e l)rior I,,itigation (id. at ,-i 30). The court issued a June 18, 2019 order dismissii1g, an1ong other things, the Counterclai1n (icl. at ~ 32). ·rhe a1ncnded co1nplaint al!eges that F'MC Con1pa11y did not appeal fi:oin the dis1nissal of the Countcrclaiin, and thus, "the Court's dis111issal oftl1e Cottntcrclai1n in the Prior Litigation is a final judg1nent as against both FMC [Company], the named party, as well as FMC LLC, the alleged successor in interest"' (id. at~! 33). Count II of RI.R's a1nended con1plaint scek.s a declaration tl1at the assertions by }~'MC Co111JJany and its alleged successor, I;MC I.LC, "'that eitl1er has obtained 3 3 of 8 [*FILED: 4] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 42 INDEX NO. 526739/2019 RECEIVED NYSCEF: 04/15/2021 title by W3)' of adverse possession or other imprOJJCr and invalid tra11sfcr of O\Vnershi.P to a portion of' the IlLR J~asement Property is barred by the doctrine ofresjuclicata and.Ji1dicial estoppel" (id. at ir 36). On January 22, 2020, defendants FMC Company and FMC LLC collectively ans\vcred the co1nplaint, denied the tnaterial allegations tl1crein and asserted affir1nativc defenses, including that ·'ltJhc determination or the Court in the prior actic>n was not a deter1ninatio11 on the 111erits of F'MC's rigl1ts with respect to adverse possession" and ''[t]here was no full litigation on the parties' respective rights concerning adverse possession'· (ans\vcr to a1ncnded complaint at iril 24-25). ]{/.,]{ !s ~~11111111a1y J11llg111e11t .Nlotil>11 fU ..R's converted n1otion seel(s partial su1n1nary judg1ncnt on Count II of the a1nended con1plai11t, by \Vhich RL.Il seeks a "def'initivc" declaration that f.;"MC Co1npany and f"MC LLC arc barred by res judicata fron1 asserting in the future that they obtained title over t11e RI.,Jl. Ease111ent Property by adverse possession. RI~R, in support of its s1un1nary judg1nent motion, sub1nits an attornC)' aftir1nation annexing exhibits, including the pleadings and so1ne oftl1c 1notion papers tiled in the l)rior Litigation, and a nTc1norandu111 of law. In its -n1e1norandu1n of la\V, RL,R asserts that "[a]s part of RLR 's opri<>sitio11 to I~MC's efforts to dis1niss RI~R's Co1nplaint in [the Jlrior I.,itigation], RI . . R argued that FMC's Co11ntcrclait11 1nust be disn1issed because FMC had affir1nativcl)1 adn1itted that it \Vas on the ].Jroperty at issue \\1ith pcrn1ission, \Vl1ich defCats 4 4 of 8 [*FILED: 5] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 42 INDEX NO. 526739/2019 RECEIVED NYSCEF: 04/15/2021 the hostility require1ne11t of adverse possession[,]" "[tJhc Court dis1nisscd IZLR's coin plaint and I~MC's Co1n1terclailn in that prior litigation" and PMC failed to appeal fro1n the dis1nissal of the Counterclaiin. Ill,R asserts that ''[b ]ccause the prior !itigatio11 i11\1olvcd a clai1n for adverse jJOssession between RLR and I•'MC which resulted in a final order that J;MC did not appca'l, FMC is barred by the doctrine of res jirdicala fro111 rclitigating its asserlil)ll that it ()btained title to IZl~Il 's l~ascn1ent Pt()perty by vvay of adverse pc)ssession . . .•· RLR asserts that FMC LLC is equally bound by the dismissal of the Counterclaim in the Prior Litigation as F-MC Co1npany's successor. EMl''s Oppositio11 t"MC, in opposition, first asserts tl1at "there is 110 clain1 pending by F'MC, as a direct actio_n, countcrclai111 or affir1nativc defense that F'MC is the owner of the property described in tl1e Drive\vay l~ase1nent as a result of adverse possession." FMC argues that "RLR's action at bar seeks an i1nper1nissible advisory opinion fron1 this Court that if 011c day l~'MC seeks to establish by action or counterclailn tl1at it O\VllS tl1e 'Subject Property' that }:;"MC should be barred fro1n asserting such elairn." Regarding tl1e 1nerits. r~MC argues that the dis111issal order i11 the l)rior Litigation granted 1:Mc Co1npany and Old J)on1inion's cross nlotion t<} dis1niss IZLil's con1plaint for trespass and unjust enrich111cnt on the grou11d that RLR was an out-of-possession property owner (having leased the RLR Property to Truck-Rite) who lacked standing. FMC clarifies that RL,fZ did not 1novc to disn1iss tl1c Counterclai1n for adverse possession, a11d J7MC was 5 5 of 8 [*FILED: 6] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 42 INDEX NO. 526739/2019 RECEIVED NYSCEF: 04/15/2021 not provided an opportunity to address the 1nerits of its Counterclai1n. FMC asserts that the dis1nissal order i11 the l)rior J_,itigation did 1101 "discuss or revievv the 1ncrits of whether FMC had adverse possession . . . " and "docs not indicate that the dis1nissa! ()f the Countcrclai1n was on the 1nerits or with or \Vithout prejudice.'' f'MC argues that "[t]hc Courtl1av-ing dis1nissed RJ_,R's prior clai1ns based upo11 lack ofsta11ding ofl~.Lllncccssarily 1neans that it did nc)l adjt1dicatc the: 1ncrits of the clai111s raised therein." J?MC argues that the Counterclai1n for adverse possession was "adn1inistratively" dis1nissed, since the court dis1nisscd IZl,IZ's C{)111plainl on the ground that IZJ_,JZ lacl(cd standing because it dcter1nined that RLR had no possessory rights in the RLR Property. RLR 's Reply lZL..IZ, in reply, sub1nits a 1ne1norandu111 of law arg11ing that the court should "reject" I_,'MC's "'specious'" argu1ncnt tl1at there is no justiciable controversy, since FMC did not cross-n1ovc to dis1niss the co1111Jlaint. Rl,Il argues that ''[t']hc assertion itself-~ a direct attack against the lando\vncr's status as the lando\vner, i1nn1ediatel:y establishes a jt1sticiab!e controversy and the la11d{)\\lncr's standi11g to challenge that clai1n." Rl.R asserts that "[tJhe fact that i~·Mc is not at this tiine actively pursuing an afJi.r111ative claim for adverse possession it irrelevant'' since '"f•'MC ... reserves the right to-assert its claiincd title in the future." In addition, RlIZ reiterates that I:;'MC's Counterclaii11 in the Prior Litigation "was dis1nissed 011 the i11erits because I;MC's own 1nultiplc ad1nissio11s defeated its s11bstantive clai1n for adverse possession." 6 6 of 8 [*FILED: 7] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 42 INDEX NO. 526739/2019 RECEIVED NYSCEF: 04/15/2021 Disc11ssio11 Su1nn1ary judg111ent is a drastic rc1nedy that deprives a litigant of his or her day in court and should, tl1us, l1nly be e1nploycd when there is no doubt as to the absence of triable · issues of material fact (Ko/ivas v Kirchoff; 14 AD3d 493 [2005]; see also Andre v Pomeroy, 35 NY2d 361, 364 [l 974 ]). ''The proponent of a motion for summary judgment must make a priina facic sho\ving of entitlen1cnt to judg1nent, as a 1natter of la,v, tendcriI1g sufficient evidence to de111onstrate the absc11ce of any 1natcrial issues of fact" (Manicone v City of New York, 75 AD3d 535, 537 [2010], quoting Alvarez v Prospect Hosp,, 68 NY2d 320, 324 [I 986]; see also Zuckerman v City a/New York, 49 NY2d 557, 562 [1980]; Winegrad v New York Univ. A1ed Cir .. 64 NY2d 851, 853 [l 985 [). If it is determined that the movant bas n1ade a pri1na facic sl10\ving or entitlc1nent to su1n1nary judg1nent, "'the bttrdcn shifts to the OJJposing part)' tc) produce evidcntiary proof in ad111issible for1n sufficient to establish the existence of 111aterial iss11cs of fact \Vhich require a trial of the actio11" (Gar!1ha1n & Han Real Es/ale Brokers v Oppenheimer, 148 AD2d 493 [1989]). l--1ere, there is no dispute that l:;'MC has no current clai1n, defense or cou11terclaiin f<Jr adverse pc)ssessio11 of RJ_,R's Easc1ncnt J>ropcrty, and Ill,ll ad1nittedly seeks a declaration, in Count II <>fthe co1nplaint, that f,'MC Co1npany and l-'MC [,LC l1a\'C no right to assert an adverse possessio11 clai1n over Rl~Il's I~asc1ncnt J>ropcrty 7 7 of 8 i11 tl1ejUtitre. [*FILED: 8] KINGS COUNTY CLERK 04/15/2021 04:56 PM NYSCEF DOC. NO. 42 INDEX NO. 526739/2019 RECEIVED NYSCEF: 04/15/2021 I-lowcvcr, the Second Depart1ncnt has l1cld that: "'I'hc courts of Nevv Yori( do not issue advisory opinions for the fu11da1ncntal reason that in this State the giving of such <>pinions is not the exercise of the judicial function ... l'hus, coitrls n1aJ' 1101 issue judicial decisions 1-t'hich can !1ave no i1nn1elliate efj'ect a11ll 111ay 11ever resolve an;1thing" (flirsclifeld v Hogan, 60 AD3d 728, 729 [2009] [internal quotations marks omitted]). RL,R's 1notio11 for partial s111n1nary judg1ncnt on Count II of the co1nplaint seeks an iinper1nissible ad\1iS{)fY OJ)ii1ion regarding l 7MC's right to assert adverse possession in the future, which \Vil! have no i1n1ncdiate effect and 1nay never resolve any actual dispute or controversy. Conscq1tently, IlLR 's 111otion for partial su1nmary judg1nent 011 Count JI of the complaint is denied (see Simon v Nortrax NE., LLC, 44 AD3d 1027, 1027 [2007] [denying de!'enda11t's 1notion for a declaration that action \Vas co1n1nc11ccd 011 certain date as an i1npcrn1issiblc request for a11 advis'ory opinionJ). Accordingly, it is hereby ORDEllED that RI_,IZ's tnotion (in 1not. seq. one) for partial s111n1nary judgrncnt on C\jUJ1t lI of the a1ncndcd co1nplaint is dc11ied. 'l'his C<)Ji.stitutes tl1c decision and order of the court. ENTER, l. S. C. HON. WR CE KNIPEL AD NISTRATIVE JUDGE 8 8 of 8

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