Opinion
Index No. 2020-00020456
07-31-2020
CALCOM PROPERTIES LLC, Plaintiff, v. McSWEENEY'S RED HOTS, INC., Defendant.
NYSCEF DOC. NO. 45 DECISION AND ORDER
RJI No. 09-1-2020-0234E ELLIS, J.
This action to quiet title, for a prescriptive easement, for an implied easement and for monetary damages, was commenced by summons and complaint, e-filed with the Clinton County Clerk on July 16, 2020.
According to the Complaint, Plaintiff Calcom Properties LLC (hereinafter referred to as "Calcom") owns property commonly known as 606 State Route 3, Town of Plattsburgh, County of Clinton, and State of New York, which it acquired in or around December of the year 2013. The property has historically been used a car wash, and is currently being used by Plaintiff for that purpose.
Defendant McSweeney's Red Hots, Inc. (hereinafter referred to as "McSweeney's"), owns property commonly known as 600 State Route 3, Town of Plattsburgh, County of Clinton, and State of New York. The property has historically been used as a restaurant, and is currently being used by Defendant for that purpose.
Plaintiff's property and Defendant's property both front State Route 3, and share a common boundary line, which runs along the eastern side of Plaintiff's property, and the western side of Defendant's property.
The disputed property in this action is a strip of land over the property now owned by defendant and leading from plaintiff's property to the driveway on defendant's property, which has historically been used for the purpose of egress of vehicles using the car wash, onto State Route 3(hereinafter referred to as the "disputed strip"). According to the Plaintiff, the Defendant has erected a barrier preventing Plaintiff and its customers from using the disputed strip to exit Plaintiff's property.
With the Summons and Complaint, Plaintiff Calcom filed an application for an order to show cause for injunctive relief in the form of an order of the Court directing Defendant McSweeney's to remove the barrier that obstructs the flow of traffic over the disputed strip, during the pendency of this action. In response to the application, the Court issued an order to show cause. On July 30, 2020, the Court heard oral argument on the motion from Plaintiff's Counsel, John J. Muldowney, and Defendant's Counsel, Thomas M. Murnane.
The Court now decides the motion for a preliminary injunction upon consideration of the arguments presented at oral argument, and the following submissions:
1. Complaint, dated July 14, 2020, and accompanying affidavit of John J. Muldowney, verified on July 13, 2020, and accompanying affidavit of Charles Callioras, verified on July 13, 2020, with attached exhibits, and accompanying affidavit of Joseph Akey, verified on July 13, 2020, and accompanying memorandum of law;
2. Affidavit of Thomas M. Murnane, dated July 27, 2020, with attached exhibits, and accompanying affidavit of Michael S. Farrell, verified on July 27, 2020, with attached exhibits, and accompanying memorandum of law; and
3. Reply affidavit of John J. Muldowney, verified on July 29, 2020, with attached exhibits.
Calcom seeks a preliminary injunction, in the form of a court order directing McSweeney's to remove the barrier blocking egress through the disputed strip.
In support of the motion Plaintiff has submitted the affidavit of Joseph Akey (hereinafter referred to as Akey), who offers a history of Plaintiff's and Defendant's properties. According to Akey, both properties were originally part of the same larger piece of property, acquired by his father, Franklyn R. Akey, in the year 1953. Akey sates, in 1960, his father went into partnership with Charles Payson for development of the aforementioned land. In doing so, some of the property from the 1953 land acquisition was transferred into the partnership. The partnership property was subsequently subdivided in the year 1985. According to Akey, 606 State Route 3 and 600 State Route 3, Plaintiff's and Defendant's properties respectively, were created by the aforementioned subdivision.
Akey states that at the time the car wash was created on what is now Plaintiff's property, both Plaintiff's and Defendant's properties were either owned by his father individually, or in partnership Charles Payson. He further states that at the time the car wash was created, the intended traffic flow for cars exiting the car wash was over the disputed strip, then out onto State Route 3 via the restaurant driveway. Akey states that for a number of years after the subdivision was created, his family and/or the partnership, continued to own the properties located at 600 and 606 State Route.
According to Akey, at some point the restaurant at 600 State Route 3 became McSweeney's Restaurant, which initially leased the property. At that time, the traffic exited from the car wash through the restaurant parking lot as described above. Subsequently, the owners of McSweeney's purchased the property in 1997. At the time of the purchase, the traffic flow operated as described above and continued in that manner for the entire period that both the car wash and restaurant operated.
Akey states in 2013, the car wash property was sold to Calcom. At the time of that sale, a site inspection was performed by the Code Enforcement Office of the Town of Plattsburgh. The site inspection included the observation of the flow of traffic into and out of the car wash as described above, including exiting through the restaurant parking lot and driveway. During the time period that the car wash was being operated by Calcom Properties from 2013 until recently, the traffic flow for cars exiting the car wash followed the above-described procedure of exiting through the restaurant parking lot onto State Route 3. He further states he believes more than 10 years transpired from the time of the first operation of the car wash and restaurant until the temporary closing of the car wash in about the year 2002.
Plaintiff has also submitted the affidavit of Charles Callioras, principal owner of Calcom. Callioras states he purchased the carwash property in December of the year 2013. According to Callioras, earlier this year, McSweeney's erected a fence which prevents cars from passing through the historical carwash exit. Callioras states the obstruction has significantly and negatively impacted his business, as potential customers have asked if the car wash is still operating or whether it has been closed down. He further states the obstruction has created a safety hazard as traffic cannot safely enter and exit the same driveway on the car wash property.
In opposition to the motion, Defendants have submitted the affidavit of Michael Farrell, a share holder in McSweeney's. According to Farrell, McSweeney's originally leased the property at 600 State Route 3 beginning in the year1994, until its purchase of the property in the year 1997. Farrell states that at the time of the purchase, the Calcom property was leased to NuWay Car Wash. Farrell states McSweeney's had a good working relationship with the owner and operator of NuWay Car Wash and permitted them to use the alleged easement area. He claims this use was sporadic and was only used for exit purposes. Farrell further states NuWay Car Wash closed in approximately 2002. According to Farrell, from 2002 to 2014, the Calcom property was vacant and was not used for any purpose. In fact, he states the building was completely empty as all car wash equipment was removed by NuWay. Farrell states the alleged easement area was not used whatsoever during that period of time.
Farrell in his affidavit argues that Plaintiff has suitable access to its property and is not in need of the claimed easement area. Farrell notes that Plaintiff has approximately 112.6 feet of road frontage on NYS Route 3 and an approximately 52 foot wide curb-cut on its property to access NYS Route 3.
Preliminary injunctive relief is a drastic remedy which is not routinely granted (see Marietta Corp. v. Fairhurst, 301 AD2d 734, 736 [3d Dept 2003]).To establish entitlement to a preliminary injunction, a party is required to demonstrate a likelihood of success on the merits, irreparable harm in the absence of an injunction and that the balance of the equities is in its favor (see CPLR§ 6301; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; Norton v. Dubrey, 116 AD3d 1215 [3d Dept 2014]). The existence of issues of fact for trial does not preclude the Court from issuing a preliminary injunction in the appropriate circumstance. (Ma v. Lien, 198 AD2d 186 [1 Dept 1993]).
Here, while recognizing that the record in this matter is not fully developed, at this time, based upon the submitted evidence, the Court finds that Plaintiff's motion for a preliminary injunction should be denied as Plaintiff has not established a likelihood of success on the merits.
With respect to Plaintiff's cause of action for a prescriptive easement, it does not appear that the use of the claimed easement has been hostile and continuous for the requisite ten year time period.
To establish the existence of an easement by prescription, a plaintiff must demonstrate, by clear and convincing evidence, "that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established"—as they were here—"hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive" (Barra v. Norfolk S. Ry. Co., 75 AD3d 821 [3d Dept 2010]; see Allen v. Mastrianni, 2 AD3d 1023, 1024 [3d Dept 2003]; McNeill v. Shutts, 258 AD2d 695, 696 [3d Dept 1999]). The presumption does not arise, however, when the parties' relationship was one of neighborly cooperation or accommodation (see Alexander v. Oakley, 95 AD3d 1391, 1392[3d Dept 2012]; Allen v. Mastrianni, 2 AD3d at 1024; see also Estate of Becker v. Murtagh, 19 NY3d 75, 82 [2012]).
As Plaintiff's use of the claimed easement began in or around the year 2014, and it is now 2020, Plaintiff will have to either tack on use of the claimed easement by prior ownership, or establish that the claimed easement vested prior to its purchase of the property.
The evidence before the Court suggests that prior to Plaintiff's ownership of 606 State Route 3, the property had not been used in as a car wash since the year 2002. In 2002, NuWay Car Wash ceased its use of the property. From 2002 to 2014, the property sat vacant, and the claimed easement was unused. This prolonged period when the easement was not used would appear to foreclose Plaintiff from tacking on its predecessors in title's prior use of the easement area, to establish the ten year period.
The evidence before the Court also suggests that Plaintiff cannot establish that the claimed easement vested prior to its purchase of the property. Notably, it appears that Plaintiff's and Defendant's properties were commonly owned, in some fashion, until the year 1997, when McSweeney's purchased 600 State 3 from the Akey/Payson ownership group. Such common ownership prevents Plaintiff from establishing the element of hostility for that time period. Even accepting that the use of the easement area by Plaintiff's predecessors in title was hostile upon McSweeney's purchase of 600 State Route 3 in 1997, the claimed easement would only have been hostilely used from1997 until the year 2002, when Nu Way Car Wash ceased using the claimed easement area. This falls short of the ten year period needed to establish a prescriptive easement.
With respect to Plaintiff's claim for an implied easement, the Court finds the submitted evidence does not establish a likelihood of success on the merits.
"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" (Abbott v Herring, 97 AD2d 870 [3d Dept. 1983] affd. 62 NY2d 1028 [1984]). " 'In order to establish an easement by implication from pre-existing use upon severance of title, three elements must be present: (1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land retained' " (Beretz v. Diehl, 302 AD2d 808, 810 [2003], quoting Abbott v. Herring, 97 AD2d at 870). "The necessity required for an implied easement based upon preexisting use is only reasonable necessity, in contrast to the absolute necessity required to establish an implied easement by necessity" (Four S Realty Co. v. Dynko, 210 AD2d 622, 623 [3d Dept 1994]). Nevertheless, under either theory, mere convenience is not sufficient to establish necessity (see Asche v. Land & Bldg. Known as 64-29 232nd St., 12 AD3d 386, 387 [2d Dept 2004]; Four S Realty Co. v. Dynko, 210 AD2d at 623)
Courts have held where the dominant estate's land abuts a public thoroughfare, the use of a servient estate's driveway for ingress and egress is a mere convenience, which is insufficient to establish the element of reasonable necessity, an essential element to create an implied easement by necessity (see Turner v. Baisley, 197 AD2d 681, 682 [1 Dept 1993]; Pastore v. Zlatniski, 122 AD2d 840, 841 [2d Dept 1986]). Nevertheless, this does not appear to be a bright line rule. Notably in Four S Realty Co. v. Dynko (supra), the plaintiff despite having an existing driveway that provided frontage on a public thorough fare, claimed an implied easement over a driveway on defendant Dynko's property. Plaintiff also claimed an implied easement over a certain portion of Defendant's property that contained a grease pit used by Plaintiff. In reversing a lower court ruling that denied the defendant's motion for summary judgment, the Third Department held as follows:
"As to the driveway across the Dynkos' property, it is undisputed that prior to the driveway's existence, the exclusive access to plaintiff's property was by the Central Avenue-Hawke Street-Lark Street route. This route remained as an alternative access route after the driveway was established and was used by plaintiff after the Dynkos prevented plaintiff's use of the driveway. Plaintiff presented evidence that trucks had difficulty navigating the more circuitous alternate route, but there is no evidence of any monetary impact on plaintiff's commercial use of the property or that its beneficial use of the property was otherwise adversely affected by the loss of access across the Dynkos' property. Mere convenience is insufficient to justify the imposition of an implied easement based upon preexisting use(Hedden v Bohling, 112 AD2d 23, 24, appeal dismissed 67 NY2d 758). It is also undisputed that plaintiff's property abuts on Central Avenue itself and plaintiff did not dispute the Dynkos' allegation that plaintiff could establish a direct access to Central Avenue without the need to cross the Dynkos' property. There is, therefore, no need for the implied easement sought by plaintiff (see, Pastore v Zlatniski, 122 AD2d 840).
We reach the same conclusion regarding the grease pit because it is undisputed that plaintiff has ample land to accommodate the grease pit without the encroachment on the Dynkos' property. The record also shows the absence of the required unity of title to the two parcels of property on which the grease pit was constructed--41 Lark Street and the strip of land formerly owned by the City (see, Astwood v Bachinsky, 186 AD2d 949, 950). In the absence of evidentiary proof in admissible form to demonstrate a question of fact regarding the element of reasonable necessity for an implied easement based upon preexisting use, it follows
that no question of fact has been raised on the element of absolute necessity for an implied easement by necessity. Plaintiff, therefore, has no claim for an implied easement and the Dynkos are entitled to summary judgment." (Four S Realty Co. v. Dynko, 210 AD2d at 623-624)(This Court's Emphasis Added).
A reading of the Four S Realty Co. v. Dynko holding appears to suggest that the existence of frontage on a public thorough fare for the party claiming an implied easement is but a factor in determining whether an implied easement over neighboring property is a reasonable necessity, albeit an important factor.
Here, the only element for an implied easement that appears to be in dispute is whether Plaintiff's use of the disputed strip is a reasonable necessity for the beneficial enjoyment of its property. Based upon the proof before this Court, it appears that Plaintiff will not be able to establish this element at trial. Significantly, the evidence suggests that Plaintiff's property, as currently configured, has more than 50 feet of paved access for ingress and egress onto State Route 3, and the property has more than 100 feet of total frontage on State Route 3. Therefor it appears there is sufficient space to configure its property in such a manner to provide suitable ingress and egress for Plaintiff and its customers. Based upon this, the Court finds that Plaintiff has not met its burden of establishing a likelihood of success on the merits for its implied easement claim.
In light of the finding that the plaintiff has not established a likelihood of success on the merits, the Court declines to address the other elements for a preliminary injunction. In denying Plaintiff's motion for a preliminary injunction, the Court has reviewed and considered the parties' arguments and evidence not specifically addressed herein. Accordingly, it is hereby
ORDERED that Plaintiff's motion for a preliminary injunction be, and hereby is, denied; and it is further
ORDERED that this Original Decision and Order is being uploaded by the Court to NYCEF, and, within 5days of the date thereof, Defendant's Counsel shall: 1) serve a copy of the Decision and Order, with notice of entry, upon all persons and/or entities entitled to notice under the law; and 2) file proof of such service.
SO ORDERED.
Dated: July 31, 2020
Tupper Lake, NY
/s/_________
HON. JOHN T. ELLIS, J.S.C.