Cooper v. Drobenko Bros. Realty, Inc.

Jan 11, 1994
Versions:

— Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered February 2, 1993, which, inter alia, granted plaintiffs’ motion to preclude and/or dismiss defendants second through seventh affirmative defenses, and denied defendants’ cross motion for a protective order and for partial summary judgment, unanimously modified, on the law and the facts, to deny dismissal of such affirmative defenses, and otherwise affirmed, without costs.

We disagree with the IAS Court that defendants’ affirmative defenses of improper service, laches, adverse possession, and the Statute of Limitations lack merit. The denial of service in defendants’ verified bill of particulars is sufficient to refute the prima facie showing of service made in the process server’s affidavit (see, CPLR 105 [t]; Howard v Spitalnik, 68 AD2d 803). Defendants also showed that they took action to their prejudice based upon plaintiffs’ delay in bringing suit, and thus laches may be interposed as a defense (see, Feldman v Metropolitan Life Ins. Co., 259 App Div 123). The open and notorious, exclusive and continuous use of the easement by defendants and their predecessors allows for a defense of adverse possession (see, Spiegel v Ferraro, 73 NY2d 622, 625-626) and the Statute of Limitations (CPLR 212 [a]). Preclusion of the third and fifth affirmative defenses was improper absent a showing that defendants’ failure to adequately respond to plaintiffs’ disclosure requests was willful, contumacious or due to bad faith (Dauria v City of New York, 127 AD2d 459, 460). Defendants’ cross motion for a protective order was properly denied for the reason that they waived any right to such relief by failing to timely challenge the interrogatories in question (CPLR 3133 [a]). Lastly, summary judgment was properly denied defendants on the ground that an issue of fact exists as to whether the easement has been extinguished (see, Arnold v Fee, 148 NY 214). Concur — Carro, J. P., Ellerin, Kupferman and Ross, JJ.