Opinion
Index No.: 23022/10
07-27-2011
CASCELTA COMPANY LLC, Plaintiff, v. AJDA, LLC, Defendant.
SHORT FORM ORDER
PRESENT: HON.
Acting Supreme Court Justice
Motion Seq. No.: 01
Motion Date: 05/02/11
The following papers have been read on this motion:
+-----------------------------------------------------------------------------+ ¦ ¦Papers ¦ ¦ ¦Numbered ¦ +-----------------------------------------------------------------+-----------¦ ¦Notice of Motion. Affidavit and Exhibits, Affirmation and Exhibit¦1 ¦ ¦and Memorandum of Law ¦ ¦ +-----------------------------------------------------------------+-----------¦ ¦Affidavit in Opposition and Exhibits. Affirmation and Memorandum ¦2 ¦ ¦of Law ¦ ¦ +-----------------------------------------------------------------+-----------¦ ¦Reply Memorandum of Law ¦3 ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, it is ordered that the motion is decided as follows:
Plaintiff moves, pursuant to CPLR § 3212, for an order granting it summary judgment. Defendant opposes the motion.
This is an action pursuant to Article 15 and Section 1951 of the New York Real Property Actions and Proceedings Law to compel the determination of claims adverse to those of plaintiff in a certain parcel of real property owned by plaintiff and located within Nassau County. Defendant has raised a counterclaim seeking a declaratory judgment regarding its interest in the same parcel of real property. Plaintiff commenced the action by filing a Summons and Verified Complaint on or about December 16, 2010. Issue was joined on or about January 24, 2011.
Plaintiff is the sole owner of a fee simple of a certain plot of real property located at 225 Central Avenue South, Bethpage, New York 11714. Plaintiff acquired its interest in said property by deed dated August 6, 2004. Said property had been owned by entities related to plaintiff, or owned by entities which were owned by the principal owners of plaintiff, since 1979.
Defendant is the sole owner of a fee simple of a certain plot of real property located at 175 Central Avenue South, Bethpage, New York 11714. Defendant has been owner in fee simple and in actual possession of its property since in or around October 25, 2007. Defendant acquired its property from BDC Realty Corporation, which had owned defendant's property since in or around June 1994. Plaintiff submits that defendant and BDC Realty Corporation are related entities in that both are owned or controlled by the same principal owners that own or control Sleepy's LLC, Sleepy's Holdings, LLC and Sleepy's Reorganization, Inc. ("Sleepy entities").
Plaintiff and defendant's properties are adjacent to one another.
On or about September 29,1966, Michael A. Forte, predecessor in title to plaintiff as a pervious owner of plaintiff's property, granted an easement to General Motors Corp. ("GM"), predecessor in title to defendant as a pervious owner of defendant's property. Said easement allowed GM to use a railroad spur track which ran from the Long Island Rail Road ("LIRR") Main Line over plaintiff's property and terminated inside a GM warehouse located on what is now defendant's property. The easement requires the grantee (now defendant) to "maintain the Spur Track from the boundary of the Long Island Rail Road Company right of way to [the defendant AJDA property] boundary."
Plaintiff argues that the easement burdening its property, in favor of defendant's adjacent property, is unenforceable, abandoned and extinguished. Plaintiff submits that, in 1996, BDC, in conjunction with other Sleepy's entities, constructed an addition to the warehouse on defendant's property. As part of said construction, the railroad spur tracks were dug up and removed from defendant's property and were cut at the border of plaintiff's and defendant's properties. The tracks on plaintiff's property were bent so that they now stick up into the air. Also as part of the construction, defendant's property was re-graded and paved over to create a level parking lot. Said re-grading created a vertical drop of approximately four feet on the border of plaintiff s property so that defendant's property is approximately four feet lower than plaintiff's property at the mouth of the subject easement. Also during the 1996 construction, the Sleepy's entities had a wood and concrete retaining wall constructed at the border of plaintiff's and defendant's properties to reinforce the vertical drop created by the re-grading. They also installed a chain link fence with barbed wire on top of the retaining wall. The retaining wall and fence run directly across the mouth of the subject easement.
Plaintiff adds that, since the 1996 construction, the Sleepy's entities have moved all or most of their warehouse operations and main offices to a different location. After they moved operations, defendant's property has been mostly vacant and generally unused. Defendant's property has also been listed for sale for approximately the past three years.
Plaintiff contends that the railroad spur tracks on its property are not in usable condition. Said tracks are partially buried by sediment and dirt. The tracks are also overgrown with trees and undergrowth. Plaintiff argues that, as a result of the 1996 construction, as well as the general neglect and disrepair of the remaining tracks on plaintiff's property, the railroad spur has been destroyed and is completely useless. Plaintiff claims that the Sleepy entities, which are related by ownership to defendant, have made it impossible to run any sort of train on or to defendant's property.
Plaintiff argues that defendant has abandoned the easement as a matter of law. Plaintiff states that "[a]n easement created by grant 'can only be extinguished by abandonment, conveyance, condemnation or adverse possession.' Gerbig v. Zumpano, 7 N.Y.2d 327, 330 (1960); see also Consol. Rail Corn, v. MASP Equip. Corp., 109 A.D.2d 604, 606 (1st Dep't 1985); Kelly v. Smith, 58 Misc.2d 883, 884 (Sup. Ct, Suffolk Co. 1969). Nonuse alone is insufficient to extinguish an easement created by grant. See Gerbig. 7 N.Y.2d at 330. To abandon an easement, there must be 'both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement." Gerbig. 7 N.Y.2d at 331. The act evincing an intention to abandon 'must be unequivocal' and 'clearly demonstrate the permanent relinquishment of all right to the easement.' Id.; see also Roby v. N.Y. Cent. & Hudson Riv. R.R. Co., 142 N.Y. 176, 181 (1894)...."
Plaintiff contends that the 1996 construction by BDC and the other Sleepy's entities, which are affiliated or related to defendant, manifested an unequivocal intention to abandon the easement. The changes made during said construction make it physically and permanently impossible to use the railroad spur to access defendant's property. Plaintiff claims that these acts are not temporary nor easily undone and show an unequivocal intention to permanently abandon the easement. Plaintiff also notes that it was the responsibility of defendant and its predecessors to maintain the easement, but that the railroad spur on plaintiff's property has been allowed to fall into such disrepair that the easement is completely unusable. Plaintiff submits that it is clear that defendant does not and cannot use the easement and the current condition of the easement is "unmistakable evidence of AJDA's intention to permanently abandon the Easement."
Plaintiff adds that "[t]he Court of Appeals has declared that '[o]nce an easement is extinguished, it is gone forever, and the servient estate is necessarily relieved of the burden.' Arena, 81 N.Y.S.2d at 630; see also Sam Dev., LLC v. Dean, 292 A.D.2d 585 (2d Dep't 2002)...." Plaintiff argues that "any expectation by AJDA that it might want to use the Easement in the future has no effect on the already-abandoned Easement. Once the Easement was extinguished by acts evincing an unequivocal intent to permanently abandon it, no later intention, act or change in ownership can reverse that extinguishment."
Finally, plaintiff submits that "[p]ursuant to RPAPL § 1951(2), an easement may be declared unenforceable 'if the restriction is of no actual and substantial benefit to the person seeking its enforcement or seeking a declaration or determination of its enforceability...because...by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason." See RPAPL 1951(2). That is precisely the case here."
In opposition, defendant argues that neither it nor any of its predecessors in interest have ever expressed any intention to abandon the easement or to abandon any rights or claims to and/or interest in said easement. Defendant submits that "a party alleging abandonment of an easement by grant must produce clear and convincing proof of the easement owner's unequivocal intention to permanently relinquish all rights and claims to the easement. Plaintiff has not provided any such proof. Its claim that AJDA abandoned the Easement is based solely on an alleged period of nonuse and alleged obstructions on the AJDA Property. However, it is well-settled that long periods of nonuse and of obstructions do not suffice to demonstrate an unequivocal, clear intent by the easement owner to permanently abandon and relinquish all rights and claims to the easement."
Defendant also argues that plaintiff's claims are barred by equity and that plaintiff's motion should be denied under equitable doctrines of waiver, estoppel, laches and unclean hands. Defendant states that "[p]laintiff purchased the Cascelta Property in 1979 with notice of the Easement. Plaintiff has been on notice of the alleged non-use of the Easement of the alleged obstructions on the AJDA property which purportedly give rise to this action since 1986 and 1996 respectively. Yet plaintiff did not sue until 2010 - thirty one (31) years after buying the Cascelta Property, twenty four (24) years after the alleged nonuse began and fourteen (14) years after the alleged obstructions on the AJDA Property." Defendant surmises that plaintiff may have commenced .the instant lawsuit to coerce defendant into compromising its rights.
Defendant additionally submits that plaintiff is not entitled to relief under RPAPL § 1951 because the easement is clearly of value to defendant since it enhances the value of defendant's property. Defendant adds that, just because the easement is not currently being used, does not mean that it is impossible that it could be used again in the future. Defendant contends that the rail spur remains on plaintiff's property, running right up to defendant's property and that said rail spur can be refurbished and the switch and tracks connecting the LIRR main line to the rail spur can be restored.
Defendant argues that whether it or its predecessors intended to abandon the easement is a question of fact which cannot be decided on a motion for summary judgment.
In reply, plaintiff argues that defendant's actions have manifested an unequivocal intent to abandon the subject easement. Plaintiff states that "AJDA argues that is has a vague, unexpressed and undisclosed intention perhaps to use the Easement some time in the future. If an unexpressed intention is sufficient to negate clear and unequivocal actions, then it would be impossible to ever meet the test for abandonment. The rule proposed by AJDA is contrary to both well established case law and common sense. The precedents are clear and AJDA's actions are more than sufficient to deem the Easement abandoned." Plaintiff adds that "[i]t is undisputed that to establish abandonment a party must show 'conduct on the part of the easement owner manifesting intent to exercise the easement no longer, and the acts relied upon to establish abandonment must unequivocally evidence a clear intention to abandon.' See Strevall v. Mink, 6 A.D.2d 350, 352 (2d Dep't 1957)(emphasis added)....The key factor is whether the easement owner manifested intent to abandon the easement. Therefore, actions taken by other parties are irrelevant since a party cannot benefit from its own actions to block off or obstruct an easement."
Plaintiff contends that, according to defendant's logic, an easement could never be abandoned because an easement owner can always claim to have an unexpressed intention to keep the easement. "The test for abandonment is whether the easement owner manifested an intent to abandon. Strevall v. Mink, 6 A.D.2d 350, 352 (2d Dep't 1957). The subjective intent of the easement owner is irrelevant. Therefore the Court need only look to AJDA's actions, not its unexpressed beliefs, in deciding whether AJDA has abandoned the Easement. Those actions are not disputed and constitute a clear manifestation of an intent to abandon the Easement."
Plaintiff adds that defendant has not met its burden of proof to establish unclean hands. Plaintiff states that defendant fails to cite any cases in which the doctrine of unclean hands has been applied to a claim seeking the abandonment of an easement and has also neglected to discuss any of the elements necessary to establish unclean hands. Plaintiff asserts that its alleged delay in bringing a lawsuit does not constitute "immoral [and] unconscionable conduct.," nor was plaintiff "injured by such conduct."
Finally, plaintiff submits that it is entitled to relief under RPAPL § 1951 because defendant has not shown that the purpose of the subject easement is capable of accomplishment. Plaintiff argues that defendant has not provided any factual support to show that the LIRR could, or would, reconnect the railroad spur to the LIRR Main Line, nor has defendant explained what value the easement has to defendant, how it could ever be of use to defendant or, if it is so valuable, why defendant destroyed the railroad tracks and re-paved and re-graded its property in the first place. Since the easement no longer accomplishes its purpose, it should be declared unenforceable.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century- Fox Film Corp., 3 N.Y.2d 395,165 N.Y.S.2d 498 (1957), supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988).
Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989).
In the instant motion, the Court finds that plaintiff has made a prima facie showing of entitlement to judgment as a matter of law.
An easement created by grant or deed may be extinguished by abandonment. See Roby v. New York Cent. & Hudson Riv. R.R. Co., 142 N.Y. 176 (1894). Abandonment depends upon intention and not lapse of time. See Snell v. Levitt, 110 N.Y. 595 (1888). Abandonment may be inferred from time, but such a conclusion will only be justified when it is accompanied by facts showing an intention to abandon the easement. See Gould v. Wilson, 115 N.Y.S.2d 177 (1952). The acts claimed to constitute an abandonment must show a destruction of the easement, impossibility of its legitimate use resulting from some act of the easement owner or other unequivocal conduct revealing the intention permanently to abandon and surrender the easements. See Roby v. New York Cent. & Hudson Riv. R.R. Co., supra. Abandonment results where there is non-use accompanied by an intention to abandon on the part of the easement owner and some overt act or failure to act which carries the implication that the easement owner neither claims nor retains any interest in the easement. See Albanese v. Dominianni, 281 A.D. 768, 118 N.Y.S.2d 347 (2d Dept. 1953). Abandonment will be presumed where the owner of the right performs, or acquiesces in the performance of, acts inconsistent with its future enjoyment or renders its legitimate use impossible.
In the instant matter the easement at issue was created by a deed, dated September 29, 1966, which stated,
"GRANTOR, in and for the consideration of the sum of One Dollar and other good and valuable consideration paid by GRANTEE to GRANTOR, the receipt of which is hereby acknowledged, DOES GIVE, GRANT AND CONVEY to GRANTEE an Easement leading from the main line Right of Way of the Long Island Rail Road Company over and across the land of GRANTOR to the Northerly line of GRANTEE'S land, .... Located in said Easement Way is a Railroad Spur Track owned by GRANTOR, and GRANTEE is hereby GIVEN and GRANTED the right to use in common with others said Track so that GRANTEE will have uninterrupted Railroad Service from the main line track of the Long Island Rail Road Company to GRANTEE'S land.
GRANTEE, by acceptance of this GRANT, agrees to maintain the Spur Track from the boundary of The Long Island Rail Road Company Right of Way to GRANTEE'S boundary;...."
Plaintiff's undisputed proof has shown that the 1996 construction completed by BDC and the other Sleepy's entities, which are affiliated or related to defendant, resulted in the subject easement being unused and unusable. The Court finds that the construction of a four foot high retaining wall and a four foot high barbed wire topped fence directly across the mouth of the subject easement was clear and convincing evidence of defendant's unequivocal intention to abandon the easement. See Plaintiff's Affirmation in Support Exhibit 13. It is most certainly evidence that defendant performed, or acquiesced in the performance of, acts inconsistent with its future enjoyment or renders its legitimate use impossible. As previously stated, the easement was originally granted to allow GM to use a railroad spur to access the LIRR main line track. The aforementioned 1996 construction (including the overt acts of the construction of the retaining wall with the fence and leaving the rail road tracks that remained on plaintiff s property stuck up in the air (see Plaintiff's Affirmation in Support Exhibit 12)), was inconsistent with the future enjoyment of the subject easement and rendered its legitimate use impossible. Furthermore, it is undisputed that the railroad spur has been disconnected from the LIRR Main Line and that the switch between the railroad spur and the LIRR Main Line was long ago removed. It is also undisputed that the tracks on plaintiff's property are partially buried, in utter disrepair and not usable on which to run rail cars. Additionally not in dispute is the fact that the railroad spur tracks have gone unused for decades and have been physically impossible to use for at least fifteen years.
The Court therefore finds that all of the facts presented before it establish clear and convincing evidence of intent to abandon the subject easement and the resultant abandonment over the past fifteen years.
As previously stated, if a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, supra. Defendant has argued that the determination of whether the easement has been abandoned turns on the issue of intent which is a question of fact that precludes summary judgment. However, as previously discussed, the Court finds that, based upon the evidence and legal argument presented before it, there is no question of fact as to the issue of intent. The Court additionally finds no merit to defendant's arguments that the action is barred by equitable principles and that plaintiff is not entitled to relief under RPAPL § 1951. The evidence defendant has offered in support said arguments is not compelling and insufficient. Defendant's contention that "just because the Easement is not currently being used, does not mean that it will be forever impossible to use it" is also not a compelling argument given the current abandoned condition of the easement and the multitude of factors that would be required to make its intended use possible once again. The Court therefore concludes that defendant failed to raise a triable issue of fact.
Accordingly, plaintiff's motion is hereby GRANTED and plaintiff is awarded a judgment declaring that the subject easement which burdens plaintiff's property is invalid, unenforceable and extinguished.
This constitutes the Decision and Order of this Court.
ENTER:
DENISE L. SHER, A.J.S.C. Dated: Mineola, New York
July 22, 2011