Preview
INDEX NO. EFO01544-2023
(FILED: ORANGE COUNTY CLERK 1270672023 09:05 AM
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 12/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
PRESENT: HONORABLE E. LOREN WILLIAMS
maneneeeee=n: ---. wa nene -X
9-11 GOSHEN AVENUE, LLC, DECISION AND ORDER
Plaintiff, Index No.: EF001544-2023
Seq. #: 2,3
-against-
BGXXI,.LLC,
Defendant.
neeenne
en ee mene. eannnnne. manene, aawe ee!
The following papers were read on plaintiff's. motion, by order to show cause, for a
preliminary injunction (Seq. #2) and defendant’s motion to dismiss pursuant to CPLR § 3211 (a)(7)
(Seq. #3):
Seq. #2
Order to Show Cause/A ffidavits/Exhibits NYSCEF Doc # 23-25, 27-29
Affidavits In Opposition/Exhibits NYSCEF Doc #63-78
Reply Affidavits/Exhibits NYSCEF Doc #79-81
Seq. #3
Notice of Motion/Affidavits/Exhibits NYSCEF Doc # 63-78
Affidavits In Opposition/Exhibits! NYSCEF Doc # 79-81
Reply Affidavits/Exhibits NYSCEF Doc # 83-85
BACKGROUND AND PROCEDURAL HISTORY
In this case, plaintiff seeks a prescriptive easement over a strip of defendant's property in
the Village of Washingtonville, which it claims it has obtained through its predecessors’ long use
ofa driveway (called the “Spears Driveway” in the pleadings) to access the parcel. Plaintiff alleges
that its predecessors-in-interest used the Spears Driveway without defendant’s permission, and
| Plaintiff submitted papers in sur-reply, without first requesting Court permission, and was in any event improper.
Sur-replies were accordingly not reviewed in connection with this motion.
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INDEX NO. EFO01544-2023
NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 12/05/2023
1985,
used it ina manner which was open, notorious, uninterrupted, and adverse to defendant since
Plaintiff alleges this all changed when, on June 20,2022, defendant’s counsel wrote to
plaintiff to inform them defendant would be taking measures to physically prevent access to the
Spears Driveway and directed plaintiff to no longer use the area. On July 19, 2022, defendant
followed through with its threat and erected a barrier of concrete blocks and a dumpster blocking
access to the Spears Driveway from plaintiff's property.. Plaintiff clainis it is now landlocked by
the defendant’s activity, However, the documents attached to the complaint reflect that plaintiff’ s
property fronts a public roadway, Goshen Avenue.
On,March 7, 2023, plaintiff filed the summons and complaint commencing this action.
Prior to serving the complaint on defendant, plaintiff moved for an order to show cause seeking a
temporary restraining order and preliminary injunction preventing defendant from continuing to
prevent access to the Spears Driveway: On March 13, 2023, the Court rejected the order to show
cause as defendant had not been served,
Following service on defendants, plaintiff filed a second order to, show cause seeking the
same relief (Sequence # 2). The Court. granted the, order to show cause, denied the requested
temporary’ restraining order, and set.the matter for briefing on the preliminary injunction. In
support of its order to show cause, plaintiff reiterated the claims in the complaint, and submitted
affidavits stating the plaintiff's predecessors had used. the Spears Driveway for an uninterrupted
period of approximately 40 years and that. such use was, without the defendant’s permission or
objection.
On June 22, 2023, defendant opposed the preliminary injunction and moved to dismiss the
complaint for failure to state a claim under CPLR § 321 1{a)(7). Defendant argues that, contrary
to the allegations in the complaint, defendant expressly permitted the plaintiff's predecessors to
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INDEX NO. EFO01544-2023
(FILED: ORANGE COUNTY CLERK 12/06/2023 09:05 AM
NYSCEF DOC. NO.’ 89 RECEIVED NYSCEF: 12/05/2023
use the Spears Driveway as a neighborly accommodation, plaintiffs predecessors’ use was not
hostile as they were aware the property was owned by someone else, was not exclusive (as others
used it too), and would annually block the area for a 24 hour period, thus defeating any claim for
an easement by prescription. Defendant further argues that. plaintiff was not entitled to a
preliminary injunction as plaintiff failed to demonstrate likelihood of success on the merits and
argued that the balance of equities do not balance in favor of Plaintiff.
On July 21, 2023, plaintiff served reply to the order to show cause and opposition to the
motion to dismiss. Plaintiff argues, inter alia, that it did not need to show exclusive use for a
prescriptive casement, that a denial of the prescriptive easement would render plaintiff's property
worthless as they have limited access to the building without it, and that defendant’s contentions
regarding permissive use were hearsay.
In reply, defendant notes that-plaintiff's property has public access, and the fact that that
access is municipal parking does not render the use of defendant’s property necessary. Defendant
submitted further affidavits countering the plaintiff's affidavits, which sharply differ on the
underlying facts.
DISCUSSION
“On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a
cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged
in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine
only whether the facts as alleged fit within any cognizable legal. theory” (Breytman v Olinville
Realty, LLC, 54 AD3d 703, 703-704 [2d Dept 2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]).
“In assessing the adequacy of a complaint under CPLR 321 1(a)(7), the court must give the
pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the
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plaintiff ‘the benefit of every possible favorable inference” (Kamehi v. Weissman, 125 AD3d 142
150 [2d Dept 2014] (quoting J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 NY3d 324, 334 [2013));
Leon, 84 NY2d at 87-88). “Unlike on a motion for summary judgment where the court searches
the record and assesses the sufficiency of the parties’ evidence, on a motion to dismiss the court
merely examines the adequacy of the pleadings” (Davis v Boeheim, 24 NY3d 262, 268 [2014]
[internal quotation marks omitted]), “While a court is permitted to consider evidentiary material
submitted by a defendant in support ofa motion to dismiss pursuant to CPLR 3211(a)(7), affidavits
submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they
establish conclusively that [the plaintiff] has no cause of action” (Phillips v Taco Bell Corp., 152
AD3d 806, 807-08 [2d Dept 2017] [citation and internal quotation marks omitted]).
“An easement by prescription is demonstrated by proof of the adverse, open and notorious,
‘continuous and uninterrupted [use of the property] for the prescriptive period. Generally, where an
easement has been shown by clear and convincing evidence to be open, notorious, continuous, and
undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent. of the
allegedly prescriptive easement to show that the use was permissive” (Duckworth v Ning Fun Chiu,
33 AD3d 583, 583 [2d Dept 2006] [citation omitted]). A prescriptive easement will not exist,
however, where the “plaintiffs use of the purported easement was permitted as a matter of willing
accord and neighborly accommodation” (see 3/5 Main St. Poughkeepsie, LLC v WA 319 Main,
LLC, 62 AD3d 690, 691 [2d Dept 2009]).
Here, giving the complaint a liberal construction, accepting all the facts alleged as true, and
giving the plaintiff the benefit of every possible favorable inference, the court must deny
defendants’ motion, as the arguments raised by the parties raise issues of disputed fact incapable
of resolution on a motion to dismiss. The parties vigorously contest the essential elements of the
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cause of action, Indeed, both parties have submitted diametrically opposed affidavits that present
wildly different views of the history of this property and the “neighborly” relationship that may or
may not have existed. These core factual issues have not been, and cannot be, resolved on a motion
to dismiss.
Defendant’s motion to dismiss is denied. A similar result is, however, warranted on
plaintiffs request for a preliminary injunction.
In exercising its discretion to issue a preliminary injunction, “the Supreme Court must
determine if the moving party has established: (1) a likelihood of success on the merits, (2)
irréparable harm in the absence of an injunction, and (3) a balance of the equities in favor of the
injunction” (Shake Shack Fulton St. Brooklyn, LLC v Allied Prop. Group, LLC, 177 AD3d.924,
927 [2d Dept 2019] [internal quotation omitted] (quoting Soundview Cinemas, Inc. vy. AC I
Soundview, LLC, 149.AD3d 1121, 1123 [2d Dept 2017])). “While the existence of issues of fact
alone will not justify denial of a motion for a preliminary injunction, the motion should not be
granted where there are issues that ‘subvert the plaintiff's likelihood of success on the merits ... to
such a degree that it cannot be said that the plaintiff established a clear right to relief” (R&G
Brenner Income Tax Consultants v Fonts, 206 AD3d 943, 944 [2d Dept 2022] (quoting Matter of
Advanced Digital Sec. Sols., Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612, 613 [2d Dept
2008])).
The parties’ submissions reflect deep issues of fact to such a degree that plaintiff has not
established any clear right to relief. Moreover, plaintiff has asserted that they have access to their
parcel and parking, even if not the parking they desire, and have not shown they will be irreparably
harmed, particularly given the delay in bringing this application from when the barriers were
erected. Plaintiff's application for preliminary injunction is denied.
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Given the Court’s determinations above, the parties remaining contentions either need not
be decided or do not alter the Court’s decision.
Accordingly it is,
ORDERED that plaintiff's request for a preliminary injunction is DENIED (Seq. #2); and
it is further
ORDERED that defendant’s motion to dismiss is DENIED (Seq. #3); and it is further
ORDERED that the parties are directed to appear for a preliminary conference on
Aanvacy Q,a024 ak l\odaan, Ine on -
The foregoing constitutes the Decision and Order of the Court.
Dated: Seprember-4f, 2023
Neve sho ENT
=
HON. oren Williams, J.S.C.
Filed in NYSCEF to All Parties
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Preview
INDEX NO. EFO01544-2023 (FILED: ORANGE COUNTY CLERK 1270672023 09:05 AM NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 12/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE PRESENT: HONORABLE E. LOREN WILLIAMS maneneeeee=n: ---. wa nene -X 9-11 GOSHEN AVENUE, LLC, DECISION AND ORDER Plaintiff, Index No.: EF001544-2023 Seq. #: 2,3 -against- BGXXI,.LLC, Defendant. neeenne en ee mene. eannnnne. manene, aawe ee! The following papers were read on plaintiff's. motion, by order to show cause, for a preliminary injunction (Seq. #2) and defendant’s motion to dismiss pursuant to CPLR § 3211 (a)(7) (Seq. #3): Seq. #2 Order to Show Cause/A ffidavits/Exhibits NYSCEF Doc # 23-25, 27-29 Affidavits In Opposition/Exhibits NYSCEF Doc #63-78 Reply Affidavits/Exhibits NYSCEF Doc #79-81 Seq. #3 Notice of Motion/Affidavits/Exhibits NYSCEF Doc # 63-78 Affidavits In Opposition/Exhibits! NYSCEF Doc # 79-81 Reply Affidavits/Exhibits NYSCEF Doc # 83-85 BACKGROUND AND PROCEDURAL HISTORY In this case, plaintiff seeks a prescriptive easement over a strip of defendant's property in the Village of Washingtonville, which it claims it has obtained through its predecessors’ long use ofa driveway (called the “Spears Driveway” in the pleadings) to access the parcel. Plaintiff alleges that its predecessors-in-interest used the Spears Driveway without defendant’s permission, and | Plaintiff submitted papers in sur-reply, without first requesting Court permission, and was in any event improper. Sur-replies were accordingly not reviewed in connection with this motion. 1 Filed in Orange County 12/06/2023 09:05:28 AM $0.00 Bk: $180f 6 Pg: 335 Index: # EF001544-2023 Clerk: SW. = — INDEX NO. EFO01544-2023 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 12/05/2023 1985, used it ina manner which was open, notorious, uninterrupted, and adverse to defendant since Plaintiff alleges this all changed when, on June 20,2022, defendant’s counsel wrote to plaintiff to inform them defendant would be taking measures to physically prevent access to the Spears Driveway and directed plaintiff to no longer use the area. On July 19, 2022, defendant followed through with its threat and erected a barrier of concrete blocks and a dumpster blocking access to the Spears Driveway from plaintiff's property.. Plaintiff clainis it is now landlocked by the defendant’s activity, However, the documents attached to the complaint reflect that plaintiff’ s property fronts a public roadway, Goshen Avenue. On,March 7, 2023, plaintiff filed the summons and complaint commencing this action. Prior to serving the complaint on defendant, plaintiff moved for an order to show cause seeking a temporary restraining order and preliminary injunction preventing defendant from continuing to prevent access to the Spears Driveway: On March 13, 2023, the Court rejected the order to show cause as defendant had not been served, Following service on defendants, plaintiff filed a second order to, show cause seeking the same relief (Sequence # 2). The Court. granted the, order to show cause, denied the requested temporary’ restraining order, and set.the matter for briefing on the preliminary injunction. In support of its order to show cause, plaintiff reiterated the claims in the complaint, and submitted affidavits stating the plaintiff's predecessors had used. the Spears Driveway for an uninterrupted period of approximately 40 years and that. such use was, without the defendant’s permission or objection. On June 22, 2023, defendant opposed the preliminary injunction and moved to dismiss the complaint for failure to state a claim under CPLR § 321 1{a)(7). Defendant argues that, contrary to the allegations in the complaint, defendant expressly permitted the plaintiff's predecessors to 2 of 6 = INDEX NO. EFO01544-2023 (FILED: ORANGE COUNTY CLERK 12/06/2023 09:05 AM NYSCEF DOC. NO.’ 89 RECEIVED NYSCEF: 12/05/2023 use the Spears Driveway as a neighborly accommodation, plaintiffs predecessors’ use was not hostile as they were aware the property was owned by someone else, was not exclusive (as others used it too), and would annually block the area for a 24 hour period, thus defeating any claim for an easement by prescription. Defendant further argues that. plaintiff was not entitled to a preliminary injunction as plaintiff failed to demonstrate likelihood of success on the merits and argued that the balance of equities do not balance in favor of Plaintiff. On July 21, 2023, plaintiff served reply to the order to show cause and opposition to the motion to dismiss. Plaintiff argues, inter alia, that it did not need to show exclusive use for a prescriptive casement, that a denial of the prescriptive easement would render plaintiff's property worthless as they have limited access to the building without it, and that defendant’s contentions regarding permissive use were hearsay. In reply, defendant notes that-plaintiff's property has public access, and the fact that that access is municipal parking does not render the use of defendant’s property necessary. Defendant submitted further affidavits countering the plaintiff's affidavits, which sharply differ on the underlying facts. DISCUSSION “On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal. theory” (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2d Dept 2008]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). “In assessing the adequacy of a complaint under CPLR 321 1(a)(7), the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and afford the 3 of 6 (FILED: ORANGE COUNTY CLERK 12706/2023 09:05 AM INDEX NO. EFO01544-2023 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 12/05/2023 plaintiff ‘the benefit of every possible favorable inference” (Kamehi v. Weissman, 125 AD3d 142 150 [2d Dept 2014] (quoting J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 NY3d 324, 334 [2013)); Leon, 84 NY2d at 87-88). “Unlike on a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties’ evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings” (Davis v Boeheim, 24 NY3d 262, 268 [2014] [internal quotation marks omitted]), “While a court is permitted to consider evidentiary material submitted by a defendant in support ofa motion to dismiss pursuant to CPLR 3211(a)(7), affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action” (Phillips v Taco Bell Corp., 152 AD3d 806, 807-08 [2d Dept 2017] [citation and internal quotation marks omitted]). “An easement by prescription is demonstrated by proof of the adverse, open and notorious, ‘continuous and uninterrupted [use of the property] for the prescriptive period. Generally, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent. of the allegedly prescriptive easement to show that the use was permissive” (Duckworth v Ning Fun Chiu, 33 AD3d 583, 583 [2d Dept 2006] [citation omitted]). A prescriptive easement will not exist, however, where the “plaintiffs use of the purported easement was permitted as a matter of willing accord and neighborly accommodation” (see 3/5 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690, 691 [2d Dept 2009]). Here, giving the complaint a liberal construction, accepting all the facts alleged as true, and giving the plaintiff the benefit of every possible favorable inference, the court must deny defendants’ motion, as the arguments raised by the parties raise issues of disputed fact incapable of resolution on a motion to dismiss. The parties vigorously contest the essential elements of the 4 of 6 INDEX NO. EFO01544-2023 FILED: ORANGE COUNTY CLERK 12706/2023 09:05 AM NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 12/05/2023 cause of action, Indeed, both parties have submitted diametrically opposed affidavits that present wildly different views of the history of this property and the “neighborly” relationship that may or may not have existed. These core factual issues have not been, and cannot be, resolved on a motion to dismiss. Defendant’s motion to dismiss is denied. A similar result is, however, warranted on plaintiffs request for a preliminary injunction. In exercising its discretion to issue a preliminary injunction, “the Supreme Court must determine if the moving party has established: (1) a likelihood of success on the merits, (2) irréparable harm in the absence of an injunction, and (3) a balance of the equities in favor of the injunction” (Shake Shack Fulton St. Brooklyn, LLC v Allied Prop. Group, LLC, 177 AD3d.924, 927 [2d Dept 2019] [internal quotation omitted] (quoting Soundview Cinemas, Inc. vy. AC I Soundview, LLC, 149.AD3d 1121, 1123 [2d Dept 2017])). “While the existence of issues of fact alone will not justify denial of a motion for a preliminary injunction, the motion should not be granted where there are issues that ‘subvert the plaintiff's likelihood of success on the merits ... to such a degree that it cannot be said that the plaintiff established a clear right to relief” (R&G Brenner Income Tax Consultants v Fonts, 206 AD3d 943, 944 [2d Dept 2022] (quoting Matter of Advanced Digital Sec. Sols., Inc. v Samsung Techwin Co., Ltd., 53 AD3d 612, 613 [2d Dept 2008])). The parties’ submissions reflect deep issues of fact to such a degree that plaintiff has not established any clear right to relief. Moreover, plaintiff has asserted that they have access to their parcel and parking, even if not the parking they desire, and have not shown they will be irreparably harmed, particularly given the delay in bringing this application from when the barriers were erected. Plaintiff's application for preliminary injunction is denied. 5 of 6 (FILED: ORANGE COUNTY CLERK 12706/2023 09:05 AM INDEX NO. EFO01544-2023 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 12/05/2023 Given the Court’s determinations above, the parties remaining contentions either need not be decided or do not alter the Court’s decision. Accordingly it is, ORDERED that plaintiff's request for a preliminary injunction is DENIED (Seq. #2); and it is further ORDERED that defendant’s motion to dismiss is DENIED (Seq. #3); and it is further ORDERED that the parties are directed to appear for a preliminary conference on Aanvacy Q,a024 ak l\odaan, Ine on - The foregoing constitutes the Decision and Order of the Court. Dated: Seprember-4f, 2023 Neve sho ENT = HON. oren Williams, J.S.C. Filed in NYSCEF to All Parties 6 of 6