Reyes v. CarrollReyes v. Carroll
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, that branch of the plaintiffs’ cross motion which was pursuant to
Ordered that the matter is remitted to the Supreme Court, Suffolk County, for further proceedings, including the entry of a judgment declaring that the plaintiffs do not have an express easement over the lot formerly owned by the defendants; and it is further,
The action arises from a boundary dispute involving adjoining residential property which had previously been under common ownership. After the plaintiffs purchased their lot in 2000, they erected a stockade fence which encroached on the lot of the predecessor in title of the defendants Joseph Carroll and Mary Carroll. In 2006, the plaintiffs removed the stockade fence at the request of the Carrolls’ predecessor in title so that the sale to the Carrolls could proceed. The plaintiffs rebuilt the stockade fence after the Carrolls purchased their lot, although the exact date the fence was rebuilt is disputed. In January 2013, the Carrolls transferred title of their lot to themselves and the defendant K. McGrath Builders, Inc. (hereinafter collectively defendants).
In May 2013, the plaintiffs commenced this action after the defendants removed the stockade fence and boundary landscaping. In addition to seeking a judgment that the plaintiffs were the owners of a strip of property (hereinafter the disputed parcel) that runs along the southern boundary of their lot and encroached on the northern portion of the defendants’ lot, and damages for, among other things, trespass, the complaint also sought a judgment declaring that the plaintiffs had an express easement over land owned by the defendants and enjoining the defendants, and all persons claiming under them, from interfering with the easement. The plaintiffs also served and filed a notice of pendency. The defendants counterclaimed, inter alia, to recover damages for trespass.
The Supreme Court granted those branches of the defendants’ motion which were for summary judgment dismissing the complaint and cancelling the notice of pendency, granted the plaintiffs’ cross motion pursuant to
With respect to the first cause of action, which sought a determination that the plaintiffs had acquired title by adverse possession, the Supreme Court properly applied the 2008 amendments to
Additionally, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action. The defendants established, prima facie, that the plaintiffs did not acquire title by adverse possession, by demonstrating that the plaintiffs’ use of the disputed parcel was not adverse, under claim of right, open and notorious, continuous, exclusive, and actual for 10 years (see
The Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action, which sought to recover damages for trespass. The essential elements of a cause of action sounding in trespass are the intentional entry onto the land of another without justification or permission (see Korsinsky v Rose, 120 AD3d 1307 [2014]; Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101 AD3d 853, 855 [2012]). The defendants established, as a matter of law, that because the plaintiffs did not adversely possess the disputed parcel for the required statutory period, the defendants could not be liable
The defendants established their prima facie entitlement to judgment as a matter of law with respect to so much of the third cause of action as sought a judgment declaring that the plaintiffs had an express easement over land owned by the defendants. The defendants also established their prima facie entitlement to judgment as a matter of law dismissing so much of the third cause of action as sought to enjoin the defendants, and all persons claiming under them, from interfering with the easement. The defendants tendered unrebutted evidence establishing that the subject easement, which is contained in a “[Corrected] Declaration Affecting Title” dated May 12, 1978, provided, in relevant part, that if the owner “shall remove either or both of the said encroachments at any time, the right to maintain such encroachments . . . shall immediately cease and terminate,” and that one encroachment had been removed by the plaintiffs’ predecessor in title. This evidence establishes, as a matter of law, that the conditional easement was extinguished by its own terms (see South Buffalo Dev., LLC v PVS Chem. Solutions, Inc., 115 AD3d 1152 [2014]; Norse Realty Group, Inc. v Mormando Family Ltd. Partnership, 38 AD3d 735 [2007]). In opposition, the plaintiffs failed to raise a triable issue of fact. The Supreme Court, however, should not have dismissed the third cause of action, since the relief demanded was, in part, for a declaratory judgment (see Lanza v Wagner, 11 NY2d 317, 334 [1962]; Matter of Van Guard Hose Co. No. 1 Drill Team of Patchogue Fire Dept. v Suffolk County Volunteer Fireman‘s Parade & Drill Team Captains Assn., 57 AD3d 792 [2008]). Accordingly, we must remit the matter to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the plaintiffs do not have an express easement over the lot formerly owned by the defendants (see BTJ Realty, Inc. v Caradonna, 65 AD3d 657 [2009]).
Moreover, the Supreme Court erred in granting that branch of the plaintiffs’ cross motion pursuant to
The Supreme Court properly rejected the plaintiffs’ contention that the defendants’ summary judgment motion was premature, since the plaintiffs failed to demonstrate how discovery may reveal or lead to relevant evidence or that facts essential to opposing the motion were exclusively within the defendants’ knowledge or control (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Cajas-Romero v Ward, 106 AD3d 850 [2013]).
The defendants’ remaining contention is without merit.
Rivera, J.P., Leventhal, Sgroi and Hinds-Radix, JJ., concur.