Opinion
023155/10.
Decided February 16, 2011.
Anthony T. Ballato, Esq. (Now Albanese Albanese), Massapequa, NY, Attorney for Plaintiff.
Steven G. Legum, Esq., Mineola, NY, Attorney for Defendant.
The following papers were read on this motion:
Papers Numbered Notice of Motion, Affidavits (Affirmations), Exhibits Annexed.............x Answering Affidavit ......................................................x Reply Affidavit...........................................................xPlaintiffs move by order to show cause for a preliminary injunction pursuant to CPLR § 6301 to enjoin and restrain the defendants, their agents, servants, tenants, successors, assigns and employees from blocking plaintiffs' ingress or egress or taking any steps to prevent plaintiffs' use and enjoyment of the paved roadway adjoining their property known as Section 66, Block 4, Lot 106 on the Nassau County Tax Map. In the underlying action, plaintiffs seek a judgment against defendant Stonebow LLC, an adjoining landowner, based upon a claim that they have title to a part of defendants' property by adverse possession, or in the alternative, that they obtained and are entitled to an adjudication that they have an easement by prescription.
Since about July 1996, plaintiffs have been and currently are the owners in fee simple of certain real property known as 5476 Merrick Road, Massapequa, New York, ("the Ballato property) located at Section 66, Block 4, Lot 107 (formerly lots 29 and 30) on the Nassau County Tax Map. The Bellato property is improved with a professional office building and attached garage.
Plaintiffs state from the time it first acquired fee title to the Bellato property in 1996 and prior to that time since about 1986, there has been a paved roadway approximately 28 feet wide that is located on defendants' property. The roadway runs south from Merrick Road for a distance of approximately 100 feet, the entire length of the west side of plaintiffs' building to the firehouse fence on the south end of the property. Plaintiffs claim that from the time that they first acquired title in 1996, and prior to that time since 1986, there has been uninterrupted use of said roadway on Lot 106 by plaintiffs and their predecessors.
Plaintiff s assert that they have acquired title by adverse possession and/or an easement by prescription over aforesaid roadway so that they can gain access to their garage driveway which is only accessible via the roadway. In support of its application, plaintiffs submit affidavits of the following people: Anthony T. Ballato, Joseph Maniscalco, Frank Martin, Mark Simonetti, Patricia R. Orzano, Daniel Wafter and Phylis Doria. In sum and substance, each affidavit states that they are familiar with the roadway at issue; that they personally have parked their vehicle or observed vehicles parked on the west wall of the Bellato property on the neighboring driveway (Lot 106); used or observed same as an only means for ingress or egress to the rear parking area of the Bellato building on the south side and for access to the garage located at the rear/south side of the building; and that these observations were made over a several year period.
Since the filing of this application, defendants have erected a fence along the property line thereby cutting off plaintiffs' vehicular access to their garage. Plaintiffs state they can no longer park their vehicles in the parking area behind their own building and cars are trapped inside the garage.
CPLR § 6301 provides that:
"A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff."
The party seeking a preliminary injunction has the burden of showing the likelihood of success on the merits of the claim; irreparable injury absent such relief; and a balancing of the equities in that party's favor (see, Kelley v. Garuda , 36 AD3d 593 [2d Dept. 2007]).
In order to acquire an easement by prescription, it must be shown that the use of real property was "hostile, open and notorious, and continuous and uninterrupted for the prescriptive period" of 10 years ( Asche v Land Bldg. Known as 64-29 232nd St. , 12 AD3d 386 , 387, 784 NYS2d 577; see Matter of Perry , 33 AD3d 704 ; Morales v Riley , 28 AD3d 623 , 813 NYS2d 518; J.C. Tarr, Q.P.R.T. v Delsener , 19 AD3d 548 , 550, 800 NYS2d 177 [2005 Tarr, Q.P.R.T. v Delsener , 19 AD3d 548 , 550, 800 NYS2d 177; Greenhill v Stillwell, 306 AD2d 434, 761 NYS2d 498). By submission of affidavits and documentary exhibits, the plaintiffs demonstrated, by clear and convincing evidence, that they would be successful on the merits with respect to a prescriptive easement. The burden then shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive (see, Frumkin v. Chemtop, 251 AD2d 449; Weinberg v Shafler, 68 AD2d 944, affd 50 NY2d 876; Hassinger v Kline, 110 Misc 2d 147, 149, affd 91 AD2d 988).
In opposition to this prima facie showing of success on the merits, the defendant STONEBOW LLC. submitted an attorney's affirmation and an affidavit of Jeffrey A. Glebwaks, a member of STONEBROW LLC. The Glebwaks affidavit fails to show that the use of the roadway was permitted over the last 10 years. Therefore, it is insufficient to defeat the presumption.
The court notes that defendants YOUNG DONG JANG AND DONG SOOK JANG have not interposed an opposition to the instant application.
With respect to the issue of irreparable injury absent the granting of a preliminary injunction, plaintiffs claim that they will be unable to use their garage and parking areas for its intended purpose, and that vehicles will be trapped inside the garage. Moreover, in the event of emergency or fire, emergency vehicles will not be able to reach plaintiffs' garage and a viable escape route from the west wall window from plaintiffs' office would be prohibited. Additionally, the gas meter will be inaccessible in violation of New York State fire codes and other applicable laws, rules and regulations. Since these injuries cannot be compensated by money damages, injunctive relief is warranted.
Plaintiffs additionally assert that the balancing of the equities are in their favor because they and their predecessors have co-existed with the adjoining property owners for more than 20 years and the use of the roadway and access to Merrick Road was unobstructed. Furthermore, the continued use of the roadway is necessary for the use and enjoyment of plaintiffs' garage and parking since the east side walkway of the Bellato property is too narrow for vehicles to travel, and there is no access over the adjacent firehouse premises. Plaintiffs contend that defendant would not be prejudiced if they were allowed continued use of the roadway in the same manner they and their predecessors have used and enjoyed for more than 20 years while this court adjudicates plaintiffs' claims.
In opposition to the motion, defendant argues that service of the instant motion was improper, thus, the court lacks jurisdiction over the issue; that the preliminary injunction requested is vague and that plaintiffs are barred by the doctrine of laches in that plaintiff was aware as far back as October 28, 2010 that defendant intended to continue the small fence which existed on the property line. Since no legal action was taken by plaintiffs since the time Mr. Bellato witnessed the fence company taking measurements, STONEBROW, LLC. proceeded at its cost and expense, to construct a fence solely on its own property.
Furthermore, defendant states that the easement would cause a substantial harm and inconvenience to defendant as it would represent a loss of 20% of available parking spaces. Since the commercial establishments contained within the property require parking for its patrons, two spots lost to an easement would cause a loss of business which could never be adequately measured.
Based on the foregoing, the court finds plaintiffs have satisfied their burden of showing the likelihood of success on the merits of the claim; irreparable injury absent such relief; and a balancing of the equities in their favor. Notably, the defendant does not contest the affidavits submitted by plaintiffs attesting to the open, notorious, continuous, and uninterrupted use of the roadway by plaintiffs and their predecessors in title for over ten (10) years. Additionally, defendant fails to rebut the presumption of a prescriptive easement by way of documentary evidence, in admissible form, showing permissive use of the roadway.
It is uncontroverted that plaintiffs and their predecessors have co-existed with the adjoining property owners for over ten (10) years and that the use of the roadway and access to Merrick Road was unobstructed. The court determines that the status quo must be maintained pendente lite; to allow a fence to exist along the property line while a final determination of the rights of the parties is pending will cause irreparable harm to the plaintiffs as they will be deprived access to their garage. Although defendant claims it would be deprived of 20% of parking space and loss of business may incur as a result of such loss, the court finds that the equities balance in plaintiffs' favor as supported the documentary evidence submitted for consideration.
Accordingly, it is
ORDERED, pending the resolution of the underlying matter, the defendants YOUNG DONG JANG, DONG SOOK JANG, and STONEBOW LLC, their agents, servants, tenants, successors, assigns, and employees be and are hereby directed to remove the fence erected by them or on their behalf and not interfere with plaintiffs' vehicular access to their garage, gas meter and parking at the subject premises located at 5476 Merrick Road, Massapequa, New York and allow unrestricted use of the subject roadway across Nassau County Tax Lot 106, Block 4, Section 66 between the parties' subject properties; and it is further
ORDERED, that a HEARING shall be held to determine an undertaking pursuant to CPLR § 6312(b) representing an amount that plaintiff will pay to the defendant for damages if it is determined that plaintiff was not entitled to an injunction; and it is further
ORDERED, that subject to the discretion of the Justice there presiding, this matter shall appear on the calender of CALENDAR CONTROL PART ON MARCH 16, 2011 at 9:30 a.m. The directive with respect to the hearing is subject to the right of the Justice presiding in CCP to refer the matter to a Justice, Judicial Hearing Officer or a Court Attorney/Referee, as he or she deems appropriate; and it is further
ORDERED, that within 10 days of receiving a copy of this order, plaintiff shall file a note of issue; and it is further
ORDERED, that a copy of the within decision and order shall be served on the Calendar Clerk and accompany the note of issue when filed. Failure to file the note of issue or appear as directed, may be deemed an abandonment of claims giving rise to the hearing.
This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.