Preview
FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF HERKIMER
FULTON CHAIN LAND, LLC and
RIVETT'S MARINE RECREATION
& SERVICE, INC.,
Plaintiffs,
-vs- NOTICE OF ENTRY
FORGED HOLDINGS LLC, VERONICA Index No. EF2021-108254
KLINE and JUSTIN KLINE, RJI No. 21-21-164
Defendants.
DEAR SIR:
Please take notice that the within is a true copy of the Decision and Order executed by the
Honorable Charles C. Merrell, Justice of the Supreme Court, on August 13, 2021, and filed in the
Office of the Clerk of the County of Herkimer on August 13, 2021.
Dated: August 16, 2021.
MERRITT S. LOCKE, Esq.
SAUNDERS, KAHLER L.L.P
Attorneys for Plaintiffs
185 Genesee Street, Suite 1400
Utica, New York 13501
Telephone: (315) 733-0419
TO: Jon P. Devendorf, Esq.
Barclay Damon, LLP
Attorneys for Defendants
125 E. Jefferson Street
Syracuse, New York 13202
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INDEX NO. EF2021-108254
[FII ED : HERK IMER COUNTY CLERK 08/13/202T 02 ; 29 Ph$
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 08/13/2021
At a term of the Supreme Court of the
State of New York, held in and for the
County of Herkimer at the Herkimer
County Supreme Court, 301 North
Washiñgton Street, Herkimer, New
York, on June 9, 2021.
STATE OF NEW YORK
SUPREME COURT COUNTY OF HERKlMER
Fulton Chain Land, LLC, DECISION
Rivett's Marine Recreation & Service, Inc., AND ORDER
Plaintiffs, Index No. EF2021-108254
v. RJi No. 21-21-168
Forged Holdings LLC,
Veronica Kline,
Justin Kline,
Defendants.
Attorney for Plaintiffs Merritt S. Locke, Esq.
Saunders Kahler, LLP
Attorney for Defeñdants. Jon P. Devendorf, Esq.
Barclay Damon, LLP
Merrell, C. C., J.S.C.
Plaintiffs Fulton Chain Land, LLC ("Fulton Chain") and Rivett's Marine Recreation
& Service, Inc. ("Rivett's Marine") have moved by Order to Show Cause pursuant to
CPLR Article 63 for a preliminary injunction to enjoin Defendants Forged Holdings LLC
("Forged Hukiings"), Veronica Kline and Justin Kline from restricting, denying or
Holdings'
Oth6rivise affecting or prohibiting the use of a claimed easement over Forged
real property for use by Plaintiffs, their employees, invitees and guests until the
underlying action in this matter is resolved. The motion is opposed by Defendants.
The dispute centers on an easerñéñt or right-of-way known as Lake Trail Drive
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which crosses several properties fronting on Old Forge Pond in the Town of Webb,
Herkimer County. Plaintiffs own and operate Rivett's Marine, a commercial marina,
which they acquired in 2020. Defendants own the Pine Knoll Motel property which is
Defendants'
bisected by the easement, which crosses between Motel and the waterfront
of Old Forge Pond. The easement presently consists of a paved roadway
approximately twelve (12) feet wide and runs from the intersection of Lakeview Road,
Plaintiffs'
Park Avenue and South Shore Road in a Southeasterly direction to property.
Since acquiring the motel property in December 2020 Defendants have disputed
Plaintiffs'
rights to use the easement or right of way at various times by blocking the
road with parked cars, a rowboat, and chairs. Plaintiffs allege Defendants have also
confronted customers, guests and vendors of Plaintiff who attempted to use the
roadway to access Plaintiffs business. Defendants acknowledge they took steps to
close the easement by erection of a barricade, due to safety and liability concerns.
Plaintiffs'
complaint alleges four causes of action: quieting title to the express
parties'
eassment in the chains of title; easement by prescription; easement by
implication and tortious interference with contractual relations.
To obtain preliminary injunctive relief Plaintiffs have the burden of shüwing that (i)
imminent irreparable harm will result if the relief is not granted, (ii) Plaintiffs have a
Plaintiffs'
likelihood of success on the merits, and that (iii) a balance of equities is in
favor (Nobu Next Door LLC v. Fine Arts House Inc., 4 NY3d 839 [2005]). It is not for the
Court to finally determine the merits of the action on a motion for preliminary injunction;
rather, the purpose of interlocutory relief is to preserve the status quo in the meantime
[4th
(Gambar Enterprises Inc. v. Kelly Services Inc., 69 AD2d 297, 306 Dept. 1979]).
1. Likelihood of Success on Merits
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Plaintiffs have demonstrated by clear and convincing evidence a likelihood of
parties'
success on the merits of their claims. There is no dispute at present that the
Plaintiffs'
chains of title show that by a series of deeds beginning in 1901 predecessor,
Defendants'
The Old Forge Company, reserved for itself an easement access across
premises "for the purpose of passing and re-passing, said passageway to be located
c
near the waterfront of Old Forge Pond".
Plaintiffs'
There is documentary evidence that parcel has been used for a
commercial marina for 60 to 100 years and that the marina was accessed by the right of
way across the former owners (Miller and Marks) lands by the deeded right of way,
which was improved to gravel and is now a paved road.
a. Express Easement
"To create an easement by express grant there must be a writing containing plain
and direct language evincing the grantor's intent to create a right in the nature of an
license."
easement rather than a revocable (Willow Tex v. Dimacopoulos, 68 NY2d 963,
965 [1986]).
An easement appurtenant occurs when the easement is (1) conveyed in writing,
(2) subscribed by the person creating the easement and (3) burdens the servient estate
[3rd
for the benefit of the dominant estate (Webster v. Raqona, 7 AD3d 850 Dept.
2004]). Thereafter, when the dominant estate is transferred, the easement passes to
the subsequent owner through appurtenance clauses even though there is no specific
|,
mention of the eassment in the deed (SJ;Lencer v. KilmeL 151 NY 390; Witter v. Taqqert,
[3d
78 NY2d 234 [1991]; Zunno v. Kiernan, 170 AD2d 795, 796 Dept. 1991]). Once the
appurtenant easement is created, it can only be extinguished by abandonment,
conveyance, condemnation, or adverse possession and "remains as inviolate as the
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fee"
(Gerbiq v. Zumpano, 7 NY2d 327, 330).
Where Plaintiffs deed is in the direct chain of title to Defendant's premises,
Defendant is charged with constructive notice of the existence of the easement
conveyed in Plaintiff's deed at the time of his purchase (Zunno v. Kieman, supra 170
AD2d 795).
As noted, the existence of an express easement reserved by and benefitting
Defendants'
Plaiñtiffs predecessors in title, which burdens the servient estate, is
parties'
established by the chain of title. The relevant deeds reflect Plaintiffs
width"
predecessor in title reserved "a right of way six feet in (Deed from Old Forge
Company to George Miller dated September 4, 1901); and "a way or passage way
across the lands herein to connect with and in line with the passage way reserved
across the adjoining lot conveyed from George Miller, and to the same extent as the
Pond"
Miller lot for the use of lot owners along the water front of Forged (Deed from Old
Forge Company to Emmet Marks dated August 21, 1902). There is no ebidence at
present that the deeded easement was ever abandoned or otherwise extinguished.
Plaintiffs have submitted significant evidence that the right of way along
Old Forge Pond has been used for at least sixty (60) years. A survey map from 2004
by D.G. Hollister PLS. shows the easement to be asphalt with a width of twelve (12)
Defendants'
feet where it crcsses property (NYSCEF Doc. No. 20). Plaintiff has also
submitted Affidavits from Diane Gaige, a former owner of Rivett's Marine Land Corp.,
which operated Rivett's Marina from 1989-2018. Mrs. Gaige states that she and her
husband controlled and maintained the easement for twenty-nine (29) years. In 1992
they paved the easement at their expense, without asking permission from adjoining
landowners. Prior to that the surface of the right of way was approximately twelve (12)
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feet in width and consisted of gravel and dirt. At this point such evidence is not
Defendants'
contradicted by opposition affidavits.
b. Prescriptive Easement
Plaintiff is also claiming a prescriptive easement to cross Defendant's land "To
establish the existence of a prescriptive easement, [it must be] 'showñ by clear and
convinciñÿ evidence, that the use of the easement was open, ñotoricus, hostile and
years'"
continuous for a period of 10 (Rensselaer Polytechnic Inst. v. Shubert, 170
AD3d 1310 Gulati v. O'Leary, AD3d [3S
1307, [2019] quoting 125 1231, 1233 Dept.
2015]). Once the other elements of the chain are established, hostility is generally
presumed, shifting the burden to the Dsfsñdañt to demonstrate the use was permissive
[4th
(Mau v. Schusler, 124 AD3d 1292 Dept. 2015]). In this regard, permission may be
inferred when the relationship between the dominant and servient estates evinced
accommodation"
"neighborly cooperation and (Allen v. Mastriami, 2 AD3d 1023, 1024
c
[3d Even if the
Dept. 2003]). property is only used seasonally, it will not be fatal so
long as the use was continuing and uninterrupted, "commsñsurate with appropriate
use"
seasonal (Alexy v. Salvador, 217 AD2d 877, 879).
From the foregoing, and affidavits submitted by Plaintiffs, Plaiñtiffs have also
demonstrated by clear and convincing evidence a likelihood of success on the merits of
a claim to a prescriptive easement, at least to the extent the express easement may
have been expañded over the years from six (6) feet wide to twelve (12) feet wide and
Defendants'
improved to better accommodate vehicular traffic. contention
Plaintiffs'
maintenance and use of the easement by predécessors was the result of
permission and/or neighborly accommodation is, this stage of the proceedings, without
foundation.
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2. Irreparable Harm and Balance of Equities
Plaintiffs have established by clear and convincing evidence a danger of
irreparable injury in the absence of injunctive relief. Defendants contend irreparable
injury cannot be sustained where there is an adequate remedy for monetary damages
and that such damages are calculable. However, Plaintiffs have shown they would
suffer irreparable injury in the absence of a preliminary injunction.
Issuance of a preliminary injunction will preserve the status quo until a decisióñ is
reached on the merits, even if the injury were purely monetary (see Arthur Young v.
AD2d [1st appeal 61
B_jagjs, 97 369, 370 Dept. 1983] dismissed NY2d 712; Gambar
Enterprises Inc. v. Kelly Services Inc., supra 69 AD2d at 306; Vanderminden v.
[3d
Vanderminden, 226 AD2d 1037, 1041 Dept. 1996]). Here, it is undisputed that the
Plaintiffs' predecessors'
status quo reflects and their use of a twelve (12) foot wide
easement for many years beyond the statutory requirement for a prescriptive easement,
for ingress and egress to their marina by customers, vendors and others.
Further, the right to free use of an easement under these circumstances, and the
rights to real property, are geñêrally recognized as a basis to find irreparable harm
[3S
(Sardino v. Scholet Family Trust, 192 AD3d 1433 Dept. 2021]; Cangemi v. Yeager,
[4th {3d
185 AD3d 1397 Dept. 2020]; Biles v. Whisher, 160 AD3d 1159 Dept. 2018]).
Defendants countered Plaintiffs have not shown irreparable harm because they
have adequate access to their property by a driveway off South Shore Road. Plaintiffs
have submitted sufficient evidence that the alternate eccess is hindered by topography
cannot be reasonably used by customers as a sole access to launch boats from
Plaintiffs'
boat launch or for larger commercial deliveries (see e.g. 572 Walt Whitman Rd
Associates LLC v. Whitman Capital LLC, 67 Misc3d 1221(A) [2020]).
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Given the existence of the six (6) foot wide deeded right of way, which appears
Plaintiffs'
not to be disputed, the availability of the limited second access to property
would not preclude a finding of irreparable harm, as a primary goal is to preserve the
status quo which has existed for at least sixty (60) years, particularly through the
summer and fall season.
Further, Defendants have not antabliched they would sustain damages or costs
as a result of a preliminary injunction in light of the long history
Preview
FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF HERKIMER FULTON CHAIN LAND, LLC and RIVETT'S MARINE RECREATION & SERVICE, INC., Plaintiffs, -vs- NOTICE OF ENTRY FORGED HOLDINGS LLC, VERONICA Index No. EF2021-108254 KLINE and JUSTIN KLINE, RJI No. 21-21-164 Defendants. DEAR SIR: Please take notice that the within is a true copy of the Decision and Order executed by the Honorable Charles C. Merrell, Justice of the Supreme Court, on August 13, 2021, and filed in the Office of the Clerk of the County of Herkimer on August 13, 2021. Dated: August 16, 2021. MERRITT S. LOCKE, Esq. SAUNDERS, KAHLER L.L.P Attorneys for Plaintiffs 185 Genesee Street, Suite 1400 Utica, New York 13501 Telephone: (315) 733-0419 TO: Jon P. Devendorf, Esq. Barclay Damon, LLP Attorneys for Defendants 125 E. Jefferson Street Syracuse, New York 13202 1 of 10 FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 INDEX NO. EF2021-108254 [FII ED : HERK IMER COUNTY CLERK 08/13/202T 02 ; 29 Ph$ NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 08/13/2021 At a term of the Supreme Court of the State of New York, held in and for the County of Herkimer at the Herkimer County Supreme Court, 301 North Washiñgton Street, Herkimer, New York, on June 9, 2021. STATE OF NEW YORK SUPREME COURT COUNTY OF HERKlMER Fulton Chain Land, LLC, DECISION Rivett's Marine Recreation & Service, Inc., AND ORDER Plaintiffs, Index No. EF2021-108254 v. RJi No. 21-21-168 Forged Holdings LLC, Veronica Kline, Justin Kline, Defendants. Attorney for Plaintiffs Merritt S. Locke, Esq. Saunders Kahler, LLP Attorney for Defeñdants. Jon P. Devendorf, Esq. Barclay Damon, LLP Merrell, C. C., J.S.C. Plaintiffs Fulton Chain Land, LLC ("Fulton Chain") and Rivett's Marine Recreation & Service, Inc. ("Rivett's Marine") have moved by Order to Show Cause pursuant to CPLR Article 63 for a preliminary injunction to enjoin Defendants Forged Holdings LLC ("Forged Hukiings"), Veronica Kline and Justin Kline from restricting, denying or Holdings' Oth6rivise affecting or prohibiting the use of a claimed easement over Forged real property for use by Plaintiffs, their employees, invitees and guests until the underlying action in this matter is resolved. The motion is opposed by Defendants. The dispute centers on an easerñéñt or right-of-way known as Lake Trail Drive 1 1 of 9 2 of 10 FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 INDEX NO. EF2021-108254 FILED: HERKIÑER COUNTY CLERK 08/13/2021 02:20M4 NYSC F DOC. NO. 59 RECEIVED NYSCEF: 08/13/2021 which crosses several properties fronting on Old Forge Pond in the Town of Webb, Herkimer County. Plaintiffs own and operate Rivett's Marine, a commercial marina, which they acquired in 2020. Defendants own the Pine Knoll Motel property which is Defendants' bisected by the easement, which crosses between Motel and the waterfront of Old Forge Pond. The easement presently consists of a paved roadway approximately twelve (12) feet wide and runs from the intersection of Lakeview Road, Plaintiffs' Park Avenue and South Shore Road in a Southeasterly direction to property. Since acquiring the motel property in December 2020 Defendants have disputed Plaintiffs' rights to use the easement or right of way at various times by blocking the road with parked cars, a rowboat, and chairs. Plaintiffs allege Defendants have also confronted customers, guests and vendors of Plaintiff who attempted to use the roadway to access Plaintiffs business. Defendants acknowledge they took steps to close the easement by erection of a barricade, due to safety and liability concerns. Plaintiffs' complaint alleges four causes of action: quieting title to the express parties' eassment in the chains of title; easement by prescription; easement by implication and tortious interference with contractual relations. To obtain preliminary injunctive relief Plaintiffs have the burden of shüwing that (i) imminent irreparable harm will result if the relief is not granted, (ii) Plaintiffs have a Plaintiffs' likelihood of success on the merits, and that (iii) a balance of equities is in favor (Nobu Next Door LLC v. Fine Arts House Inc., 4 NY3d 839 [2005]). It is not for the Court to finally determine the merits of the action on a motion for preliminary injunction; rather, the purpose of interlocutory relief is to preserve the status quo in the meantime [4th (Gambar Enterprises Inc. v. Kelly Services Inc., 69 AD2d 297, 306 Dept. 1979]). 1. Likelihood of Success on Merits 2 3 of 10 FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 INDEX NO. EF2021-108254 IFILED: liERKIMER COUNTY CLERK 08/13/2021 02:29 Phlj NYSCEF DOC. NO. 59 .RECEIVED NYSCEF: 08/13/2021 Plaintiffs have demonstrated by clear and convincing evidence a likelihood of parties' success on the merits of their claims. There is no dispute at present that the Plaintiffs' chains of title show that by a series of deeds beginning in 1901 predecessor, Defendants' The Old Forge Company, reserved for itself an easement access across premises "for the purpose of passing and re-passing, said passageway to be located c near the waterfront of Old Forge Pond". Plaintiffs' There is documentary evidence that parcel has been used for a commercial marina for 60 to 100 years and that the marina was accessed by the right of way across the former owners (Miller and Marks) lands by the deeded right of way, which was improved to gravel and is now a paved road. a. Express Easement "To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor's intent to create a right in the nature of an license." easement rather than a revocable (Willow Tex v. Dimacopoulos, 68 NY2d 963, 965 [1986]). An easement appurtenant occurs when the easement is (1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate [3rd for the benefit of the dominant estate (Webster v. Raqona, 7 AD3d 850 Dept. 2004]). Thereafter, when the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses even though there is no specific |, mention of the eassment in the deed (SJ;Lencer v. KilmeL 151 NY 390; Witter v. Taqqert, [3d 78 NY2d 234 [1991]; Zunno v. Kiernan, 170 AD2d 795, 796 Dept. 1991]). Once the appurtenant easement is created, it can only be extinguished by abandonment, conveyance, condemnation, or adverse possession and "remains as inviolate as the 3 3 of 9 4 of 10 FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 INDEX NO. EF2021-108254 FILED: HERKIMER COUNTY CLERK 08/13/2021 02:29 Ph$ NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 08/13/2021 fee" (Gerbiq v. Zumpano, 7 NY2d 327, 330). Where Plaintiffs deed is in the direct chain of title to Defendant's premises, Defendant is charged with constructive notice of the existence of the easement conveyed in Plaintiff's deed at the time of his purchase (Zunno v. Kieman, supra 170 AD2d 795). As noted, the existence of an express easement reserved by and benefitting Defendants' Plaiñtiffs predecessors in title, which burdens the servient estate, is parties' established by the chain of title. The relevant deeds reflect Plaintiffs width" predecessor in title reserved "a right of way six feet in (Deed from Old Forge Company to George Miller dated September 4, 1901); and "a way or passage way across the lands herein to connect with and in line with the passage way reserved across the adjoining lot conveyed from George Miller, and to the same extent as the Pond" Miller lot for the use of lot owners along the water front of Forged (Deed from Old Forge Company to Emmet Marks dated August 21, 1902). There is no ebidence at present that the deeded easement was ever abandoned or otherwise extinguished. Plaintiffs have submitted significant evidence that the right of way along Old Forge Pond has been used for at least sixty (60) years. A survey map from 2004 by D.G. Hollister PLS. shows the easement to be asphalt with a width of twelve (12) Defendants' feet where it crcsses property (NYSCEF Doc. No. 20). Plaintiff has also submitted Affidavits from Diane Gaige, a former owner of Rivett's Marine Land Corp., which operated Rivett's Marina from 1989-2018. Mrs. Gaige states that she and her husband controlled and maintained the easement for twenty-nine (29) years. In 1992 they paved the easement at their expense, without asking permission from adjoining landowners. Prior to that the surface of the right of way was approximately twelve (12) 4 4 of 9 5 of 10 FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 INDEX NO. EF2021-108254 NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 08/13'2021 feet in width and consisted of gravel and dirt. At this point such evidence is not Defendants' contradicted by opposition affidavits. b. Prescriptive Easement Plaintiff is also claiming a prescriptive easement to cross Defendant's land "To establish the existence of a prescriptive easement, [it must be] 'showñ by clear and convinciñÿ evidence, that the use of the easement was open, ñotoricus, hostile and years'" continuous for a period of 10 (Rensselaer Polytechnic Inst. v. Shubert, 170 AD3d 1310 Gulati v. O'Leary, AD3d [3S 1307, [2019] quoting 125 1231, 1233 Dept. 2015]). Once the other elements of the chain are established, hostility is generally presumed, shifting the burden to the Dsfsñdañt to demonstrate the use was permissive [4th (Mau v. Schusler, 124 AD3d 1292 Dept. 2015]). In this regard, permission may be inferred when the relationship between the dominant and servient estates evinced accommodation" "neighborly cooperation and (Allen v. Mastriami, 2 AD3d 1023, 1024 c [3d Even if the Dept. 2003]). property is only used seasonally, it will not be fatal so long as the use was continuing and uninterrupted, "commsñsurate with appropriate use" seasonal (Alexy v. Salvador, 217 AD2d 877, 879). From the foregoing, and affidavits submitted by Plaintiffs, Plaiñtiffs have also demonstrated by clear and convincing evidence a likelihood of success on the merits of a claim to a prescriptive easement, at least to the extent the express easement may have been expañded over the years from six (6) feet wide to twelve (12) feet wide and Defendants' improved to better accommodate vehicular traffic. contention Plaintiffs' maintenance and use of the easement by predécessors was the result of permission and/or neighborly accommodation is, this stage of the proceedings, without foundation. 5 5 of 9 6 of 10 FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 INDEX NO. EF2021-108254 FILED HERKINER COUNTT CLERK 08713/2021 02 :29 PM NYS EP DOC. NO. 59 RECEIVED NYSCEF: 08/13/2021 2. Irreparable Harm and Balance of Equities Plaintiffs have established by clear and convincing evidence a danger of irreparable injury in the absence of injunctive relief. Defendants contend irreparable injury cannot be sustained where there is an adequate remedy for monetary damages and that such damages are calculable. However, Plaintiffs have shown they would suffer irreparable injury in the absence of a preliminary injunction. Issuance of a preliminary injunction will preserve the status quo until a decisióñ is reached on the merits, even if the injury were purely monetary (see Arthur Young v. AD2d [1st appeal 61 B_jagjs, 97 369, 370 Dept. 1983] dismissed NY2d 712; Gambar Enterprises Inc. v. Kelly Services Inc., supra 69 AD2d at 306; Vanderminden v. [3d Vanderminden, 226 AD2d 1037, 1041 Dept. 1996]). Here, it is undisputed that the Plaintiffs' predecessors' status quo reflects and their use of a twelve (12) foot wide easement for many years beyond the statutory requirement for a prescriptive easement, for ingress and egress to their marina by customers, vendors and others. Further, the right to free use of an easement under these circumstances, and the rights to real property, are geñêrally recognized as a basis to find irreparable harm [3S (Sardino v. Scholet Family Trust, 192 AD3d 1433 Dept. 2021]; Cangemi v. Yeager, [4th {3d 185 AD3d 1397 Dept. 2020]; Biles v. Whisher, 160 AD3d 1159 Dept. 2018]). Defendants countered Plaintiffs have not shown irreparable harm because they have adequate access to their property by a driveway off South Shore Road. Plaintiffs have submitted sufficient evidence that the alternate eccess is hindered by topography cannot be reasonably used by customers as a sole access to launch boats from Plaintiffs' boat launch or for larger commercial deliveries (see e.g. 572 Walt Whitman Rd Associates LLC v. Whitman Capital LLC, 67 Misc3d 1221(A) [2020]). 6 6 of 9 7 of 10 FILED: HERKIMER COUNTY CLERK 08/16/2021 02:22 PM INDEX NO. EF2021-108254 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 08/16/2021 INDEX NO. EF2021-108254 |FILEDi HERKfMER COUNTY CLERK 08/13/2021 62:29 PM) NYSC E E DOC . NO. 59 RECEIVED NYSCEF: 08/13 2021 Given the existence of the six (6) foot wide deeded right of way, which appears Plaintiffs' not to be disputed, the availability of the limited second access to property would not preclude a finding of irreparable harm, as a primary goal is to preserve the status quo which has existed for at least sixty (60) years, particularly through the summer and fall season. Further, Defendants have not antabliched they would sustain damages or costs as a result of a preliminary injunction in light of the long history