NEW YORK SUPREME COURT – QUEENS COUNTY
Present: HONORABLE DARRELL L. GAVRIN Justice
BEACH 50TH STREET LLC, a New York limited liability company, Plaintiff,
PENINSULA ROCKAWAY LIMITED PARTNERSHIP, a New York limited partnership, and PENINSULA ROCKAWAY HOUSING DEVELOPMENT FUND CORP., a New York not-for profit corporation, and WELLS FARGO BANK, N.A., Defendants.
The following papers numbered EF9 to EF29 read on this motion by Peninsula Rockaway Limited Partnership (the “Partnership”), and Peninsula Rockaway Housing Development Fund Corp. (the “HDFC”), collectively referred to herein as the “Owners”, to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (a)(7).
Notice of Motion – Affirmation – Exhibits …………………………………… EF9-EF24
Affirmation in Opposition – Exhibit – Memorandum of Law ………… EF26-EF28
Reply Memorandum of Law ……………………………………………………… EF29
Upon the foregoing papers, it is ordered that the motion is determined as follows: Plaintiff in this declaratory judgment action alleges that it has an easement, either by implication (first cause of action), or by prescription (second cause of action), over a portion a the Owners’ property, for the purpose of permitting its visitors to park vehicles. Plaintiff presently uses the Owners’ Property as one of three distinct areas where visitors to patients in plaintiff’s building, the Peninsula Nursing and Rehabilitation Center (the “Nursing Center”, or “plaintiff’s property”), to park their cars. Its complaint seeks declaratory judgment relief that plaintiff is entitled to continually occupy and utilize the Owners’ property for the purpose of parking its vehicles free of charge. The complaint also seeks permanent injunctive relief barring the Owners from interfering with plaintiff’s occupation of the Owners’ Property.
As noted above, the Owners move to dismiss the complaint based upon documentary evidence, and on the ground that the complaint fails to state a cause of action. Plaintiff opposes the motion.
Plaintiff is a limited liability company under the laws of the State of New York. Defendant Peninsula Rockaway Limited Partnership (“Peninsula LP”), is a domestic limited partnership under the laws of the State of New York. Defendant Peninsula Rockaway Housing Development Fund Corp. (“HDFC”), is a not-for-profit corporation under the laws of the State of New York. Peninsula LP is the owner of the property located at 51-15 Beach Channel Drive, in Far Rockaway, New York, formerly known as the Peninsula Hospital Center (the “Hospital”). Peninsula Housing acts as the nominee of the property. Defendant Wells Fargo Bank is the holder of a mortgage over the Hospital property.
Plaintiff is the owner of the Nursing Center, which occupies the northeastern quadrant of the parcel that the Hospital was built on in or around 1908. In the early 1970s, the owners of the Hospital constructed the Nursing Center, which was later purchased by plaintiff after both the Hospital and Nursing Center went into bankruptcy in or around 2011. The south side of the Nursing Center abuts a parking lot (the “Parking Lot”), which has allegedly been exclusively used by Nursing Center employees and visitors since its construction more than thirty years ago. The now-defunct Hospital, including the Parking Lot is currently deeded to Peninsula LP.
In its complaint, plaintiff alleges that the Owners have only recently challenged plaintiffs right to utilize the Parking Lot by placing notices on vehicles in the Parking Lot which indicate that the vehicles are trespassing. Moreover, as of May 19, 2017, defendant Peninsula LP began towing cars from the Parking Lot.
As background, the complaint alleges the following: On May 5, 2016, the HDFC acquired fee title interest (a/k/a/ legal or record title interest) to the property located at 51-15 Beach Channel Drive, Far Rockaway, New York, pursuant to a Bargain and Sale Deed dated May 5, 2016. The HDFC held fee title to the Owners’ Property solely as nominee for, and on behalf of, the Partnership, while the Partnership retained all of the equitable and beneficial ownership of the fee interest in the Owners’ Property, in accordance with a certain Declaration of Interest and Nominee Agreement dated as of May 5, 2016 (the “Nominee Agreement”). The Partnership is developing a 2,200 unit affordable housing project on the Owners’ Property. Peninsula Hospital Center, successor to Peninsula General Hospital (the “Hospital”), was the previous owner of Developer’s Site, which ownership interest it acquired pursuant to a sale in bankruptcy.ownership of the fee interest in the Owners’ Property, in accordance with a certain Declaration of Interest and Nominee Agreement dated as of May 5, 2016 (the “Nominee Agreement”). The Partnership is developing a 2,200 unit affordable housing project on the Owners’ Property. Peninsula Hospital Center, successor to Peninsula General Hospital (the “Hospital”), was the previous owner of Developer’s Site, which ownership interest it acquired pursuant to a sale in bankruptcy.
On April 8, 2014, plaintiff acquired ownership interest in the property located at 50-15 Beach Channel Drive, Far Rockaway, New York, pursuant to a deed (“Plaintiffs Property Deed”). Visitors of the Nursing Center have used the northern-most area of the Owners’ Property that abuts the Nursing Center (the “Owners’ Parking Area”), as one of three parking areas. The other two parking areas used for the benefit of the Nursing Center are located on plaintiffs property. Notably, Beach 50th Street is a public street with available parking and located immediately to the east of plaintiffs first parking area.
The Owners submit that the Hospital was constructed in or around 1908 on the property located at 51-15 Beach Channel Drive, in Far Rockaway, New York. This property was bounded by Beach Channel Drive, Beach 53″ Street, Rockaway Beach Boulevard and Beach 50th Street. Running through the property was Beach 51st Street. In or around 1970, the Hospital obtained authorization from the City of New York to close Beach 51st Street, as it owned both sides of the street. Plaintiff further avers that, in or around 1971, the Hospital built the Nursing Center on the northeast side of the parcel, bounded by Beach 50th Street and Beach Channel Drive. Although the Nursing Center was established as a legally distinct entity, it was owned and controlled by the same individuals as the Hospital. Defendants contend that connection between the Nursing Center and the Hospital was strong enough that the Nursing Center was built with an access corridor linking it directly with the Hospital; further plaintiff submits that since the creation of the Nursing Center, while the Parking Lot has never been included in the Nursing Center parcel, the Nursing Center parcel did include an easement through the Hospital property allowing access to the Parking Lot. The relationship between the Nursing Center and the Hospital was such that legal formalities as to the ownership of the Parking Lot were unnecessary (at that time).
In 2011, both the Hospital and the Nursing Center went into Chapter 11 bankruptcy, with Lori Lapin Jones acting as Trustee (the “Trustee”). In 2012, the Trustee conveyed the Nursing Center parcel to plaintiff. In 2013, the Trustee conveyed the Hospital parcel to Beach Drive Holdings LLC, which in turn conveyed the Hospital parcel to Congregation Zichron Yitzehok Vmoshe Eliyahu, which in 2016 conveyed the Hospital parcel to defendant Peninsula Housing.
In August 15, 2015, defendant Peninsula LP sought the agreement of plaintiff to reopen Beach 51.” Street closed in the 1970s. Since plaintiff refused to agree to the reopening of the street, representatives of Peninsula LP then asserted, allegedly for the first time, that the Parking Lot is exclusively the property of the Hospital and that the Nursing Center employees and visitors are not permitted to use the Parking Lot. In May 17, 2017, Peninsula LP representative placed stickers on vehicles in the Parking Lot indicating that the vehicles were trespassing, and would be towed should they continue to park in the Parking Lot. On May 19, 2017, Peninsula LP representatives began towing cars from the Parking Lot. Defendants submit that Peninsula LP is developing a 2,200 unit affordable housing project on the Owners’ Property.
It is undisputed that there is no written easement for the use of the Owners’ Parking Area for the benefit of the Nursing Home for any purpose, including but not limited to, parking vehicles. Rather, the sole written easement that exists for the benefit of plaintiffs property over owner’s property is a reciprocal easement in favor of both properties over a portion of the area that was formerly Beach 51″ Street, and is located on Owners’ Property (the “Reciprocal Easement”). The Reciprocal Easement is not in issue in this case. The reciprocal easement does not grant plaintiff the right to park cars in the easement area, but provides both the Owners’ Property and the plaintiffs property with “the right to use, for purposes of ingress and egress to Rockaway Beach Boulevard by its employees, visitors, invitees and licensees, all that certain plot, piece or parcel of land in the bed of formerly Beach 51″ Street.”
In 2016, the parties began discussions to terminate the Reciprocal Easement. The parties had agreed to terminate the Reciprocal Easement following Owners’ construction, at its sole cost and expense of (1) a new roadway or pathway that the Owners would construct between owner’s property and plaintiffs property; and (2) curb cuts onto the southern-most portion of plaintiffs property for that new roadway or pathway. This construction was designed to provide plaintiff with additional parking and access that is comparable to that which it has pursuant to the reciprocal easement, thus eliminating the need for the continued existence of the reciprocal easement.
After further consideration for the termination of the reciprocal easement, the Owners also agreed that they would construct, at their sole cost and expense, certain additional parking on plaintiffs property (“proposed additional parking”), and as an accommodation to plaintiff, would permit plaintiff to utilize the owner parking area for parking vehicles until such construction was complete. On April 27, 2017, after approximately nine months of Owners attempting to obtain plaintiffs agreement to the terms of their termination of the reciprocal easement, during which time they continued to permit plaintiff to park its vehicles in the Owners’ Parking Area despite receiving no compensation therefor, plaintiffs counsel informed Owners, for the first time, that it would need a “cash consideration” in order to proceed with the agreement. Owners had agreed to construct certain improvements for plaintiff’s benefit at significant expense to Owners, but they never agreed to make any payment to plaintiff, which demand was, according to Owners, “unjustified.” The parties, therefore, could not reach an agreement regarding the termination of the reciprocal easement. Owners thereupon informed plaintiff that it could no longer utilize the Owners’ Parking Area for parking its vehicles. Thereafter, plaintiff filed the instant lawsuit claiming, for the first time, that it had an implied or prescriptive easement over Owners’ Parking Area for the sole purpose of permitting visitors to park their vehicles when visiting the Nursing Center.
“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference” (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996 [2d Dept 2010]; see Leon v Martinez, 84 NY2d 83, 87 ). A motion pursuant to CPLR 3211(a) (1) to dismiss a complaint on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923, 924-925 [2d Dept 2014]). “The evidence submitted in support of such motion must be documentary or the motion must be denied” (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2d Dept 2012] [internal quotation marks omitted]; see Fontanetta v John Doe 1, 73 AD3d 78, 84 [2d Dept 2010]; see also David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10 at 21-23).
In order for evidence submitted in support of a CPLR 3211(a) (1) motion to qualify as “documentary evidence,” it must be “unambiguous, authentic, and undeniable” (Attias v Costiera, 120 AD3d 1281, 1282-83 [2d Dept 2014], citing Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2d Dept 2010] [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). “Pludicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714).
Here, the documentary evidence submitted by the Owners in support of their motion to dismiss establishes that plaintiff was not granted an express easement over the subject portion of the Owners’ Property (see Rozek v Kuplins, 266 AD2d 445, 446 [2d Dept 19991; cf Lewis v Young, 92 NY2d 443 ).
In opposition, plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). It is undisputed that plaintiff does not have an express or retained easement to park vehicles on any portion of the Owners’ Property. Plaintiff, in fact, concedes that the area in which it seeks to have its visitors park is part of the Owners’ Property. The deed to the Owners’ Property is documentary proof of the same.
For an implied easement, “a grantee claiming an easement implied by existing use must establish: (1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed” (Mau v Schusler, 124 AD3d 1292, 1293-94 [4th Dept 2015], citing Monte v Di Marco, 192 AD2d 1111, 1112 [4th Dept 1993], lv. denied 82 NY2d 653 ). Implied easements are not favored in the law and the burden of proof rests with the party asserting the existence of facts necessary to create an easement by implication to prove such entitlement by clear and convincing evidence (Zentner v Fiorentino, 52 AD2d 1036 [4th Dept 1976]).
In the case at bar, plaintiff has not alleged that there was ever a unity of the Owners’ Property and plaintiffs property, which title was later separated. Plaintiff only claims that “the Hospital and the Nursing Center were held in common ownership.” Plaintiff contradicts this factual claim, however, in paragraph 8 of the complaint where it alleges that “the Nursing Center was established as a distinct legal entity [from the Hospital]”.
Further, having purchased the Nursing Center out of bankruptcy in 2014, plaintiff cannot attest to the prior use of Owners’ Property, let alone use that would evince some type of permanence. In any event, the purported use of the Owners’ Parking Area by plaintiff to park vehicles must have been so used prior to separation of title, which plaintiff denied. Moreover, the beneficial use element is absent in this action. The complaint merely echoes the legal standard that “the use of the Parking Lot is necessary for the beneficial use and enjoyment of the Nursing Center”. While the court will accept well-pleaded facts as true, it will not take as true, conclusory allegations of fact or law not supported by allegations of specific fact (Wilson v Tully, 243 AD2d 229, 234 [1st Dept 1998]) (emphasis added). “A trial court need not blindly accept as true all allegations, nor must it draw all inferences from them in plaintiffs’ favor unless they are reasonable inferences.” Furthermore, this pleading infirmity is not cured by plaintiffs bald statement that visitors to plaintiffs property “often require the use of the parking lot while they are visiting.” The use of a parking lot for visitors constitutes a mere convenience and, as such, is insufficient to justify the grant of an easement (see e.g. Mau v Schusler, supra, 124 AD3d at 1293-94 [4th Dept 20151; see also Hedded v Bohling, 112 AD2d 23, 24 [4th Dept 1985]) [“defendant’s use of the driveway in dispute is a mere convenience which is insufficient to justify the granting of an easement”]
Accordingly, the complaint fails to allege facts necessary to establish an easement by prescription. “An easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period” (Colin Realty Co., LLC v Manhasset Pizza, LLC, 137 AD3d 838, 839-40 [2d Dept 2016]; 315 Main St Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690, 691 [2d Dept 2009]). The prescriptive period is ten years (see CPLR 212[a]; RPAPL § 501. Where the use 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 alleged prescriptive easement to show that the use was permissive (315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d at 691; see Frumkin v. Chemtop, 251 AD2d 449 [2d Dept 1998]). While there was evidence in the present case that the plaintiffs use of the Owners’ Parking Area was open, notorious, continuous, and undisputed, Owners established as a matter of law that the plaintiffs use of the purported easement was permitted as a matter of willing accord and neighborly accommodation (315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, supra, 62 AD3d at 691; see Duckworth v Ning Fun Chiu, 33 AD3d 583, 583-584 [2d Dept 2006]; Frumkin v Chemtop, 251 AD2d at 449). Therefore, the burden shifted to the plaintiff to come forward with evidence of hostile use sufficient to raise a triable issue of fact (see Frumkin v Chemtop, 251 AD2d at 450). Plaintiff failed to do so.
Furthermore, where as here, permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right (see Jansen v Sawling, 37 AD2d 635, 636 [3d Dept 1971]). Here, plaintiff has not shown that it has asserted a right hostile to that of the Owners of cthe prescriptive ten year period of time.
Accordingly, the motion by the Owners to dismiss is granted.