Opinion
2869/03.
Decided November 23, 2004.
In this action for declaratory judgment, defendants Duane Reade and The Dorothy Basson Martin Trust (Martin Trust) seek an order (1) granting summary judgment dismissing the complaint with prejudice; (2) granting judgment in their favor on the counterclaims for declaratory judgment, a permanent injunction and compensatory and punitive damages for trespass; (3) imposing sanctions in the form of attorneys fees, costs and disbursements, pursuant to 22 NYCRR § 130-1.1; and (4) awarding pre-judgment and post-judgment interest on the counterclaims, together with costs.
On May 11, 2000 Paul Cassuto and Jon Wapnick entered into a purchase and sale agreement with WTG Service Center Inc. (WTG) and Patrick O'Rourke Realty Inc. (O'Rourke) to purchase the real property known as 115-20 Beach Channel Drive, and identified as Block 16166, Lots 317 and 322. WTG was the record owner of Lot 317 and O'Rourke was the record owner of Lot 322. This property is located on the westbound side of Beach Channel Drive, northeast of the intersection with Beach 116th Street, and is improved by a gas station and convenience store, which were leased by WTG and O'Rourke to Robert Kelez and Petkel Auto Repairs, Inc. The agreement for the sale of the real property states that simultaneously with the sale of the property Hornet Service Station Inc. and Combo Convenience Store entered into two separate purchase agreements with Mr. Cassuto and Mr. Wapnick for the sale of the convenience store and the Amaco motor fuel sales facility located at the property. Paragraph 17.10 of the sales agreement states as follows:
"Use of Adjoining Property
The Sellers and Petkal Auto Repair Inc. and their customers (collectively "Petkel")are currently using a portion of the adjoining property known as Block 16190 Lot 10 for parking purposes and for ingress and egress with the consent of the Tenant of such property who is a related corporation to this Seller. The Purchaser, their successor and or assigns, their invitees, their customers etc. fully understand that on the date of the closing and thereafter, they shall in no way have any rights to continue to use such adjoining property any purposes whatsoever. Seller represents that it never granted or arranged for Petkel Auto Repairs to have the right to park on the adjoining property, orally or under any written agreement and no such right exists."
A rider to the sales agreement states, in pertinent part, that '[c]losing is made subject to the title company insuring that (a) the two lots to be conveyed hereunder are contiguous for at least 101.99 feet (b) none of the covenants, easements, or restrictions affecting the Premises are violated by the Premises or the current use thereof, that lot 322 enjoys the same rights of use as lot 317 with respect to a 15' x 91.78' strip of lot 315 which adjoins 322 on the east. Closing is conditioned upon." This easement refers to a strip of property located to the east of the gas station, which was used as an area for fuel piping. The property to the east of the gas station is owned by Patricia Gorman (Lot 336) and by O'Rourke (Lot 312). The contract of sale does not refer to any other easement.
The sales agreement was executed by Walter T. Gorman as the President of WTG and the President of O'Rourke. Mr. Gorman is a licensed professional engineer and maintains an office at 115-14 Beach Channel Drive, which is immediately to the east of Snapper's property. Mr. Gorman is also the President of Vacheron Horizon Group (Vacheron). The adjoining property referred to in the sale's agreement, located at 116-02 Beach Channel Drive, and identified as Block 16190, Lot 10, is owned by the Martin Trust and was unimproved at the time the gas station property was sold. Mr. Gorman, on behalf of Vacheron had, entered into ten year written lease dated April 1, 1994 with Dorothy Basson Martin, as trustee of the Martin Trust to lease Lot 10 for "any legal purpose except the use thereof as a Diner."
The documentary evidence submitted herein includes a deed to the property known as 115-20 Beach Channel Drive, dated July 3, 2000, from WTG Service Center Inc. to Snapper was recorded on August 9, 2000; a mortgage dated October 24, 2000 for this property from Snapper to Sunoco Inc., was recorded on March 9, 2001; and a prior deed to the property dated January 4, 1993 from Mitiline Realty Corp. to WTG Service Center Inc., recorded on January 27, 1993.
Plaintiff Snapper Realty LLC (Snapper)is the present fee owner of the real property located at 115-20 Beach Channel Drive, Rockaway Park, New York. Paul Cassuto is the President of Snapper. Since October 24, 2004, Sunoco, Inc. has held legal title to the lots adjacent to Lot 10, under a mortgage deed given to secure payment of a loan to Fuel 4 You, Inc. The gas station on the premises owned by Snapper is owned and operated by Fuel 4 You, Inc., and Paul Cassato is the Chairman or CEO of this corporation. Although the sales agreement for the purchase of the gas station property was executed by Cassuto and Wapnick, the court notes that the deed to the property states that title to the property was transferred from WTG Service Center Inc. to Snapper. Snapper has not submitted any evidence that the sales agreement was assigned to it and has offered no explanation as regards this discrepancy.
On March 31, 2001, while the Vacheron lease was still in effect, the Martin Trust and Duane Reade entered into a ground lease, whereby Duane Reade leased Lot 10 for a period of 30 years, with an option for an additional term of 10 years. Duane Reade entered into the ground lease with the intention of constructing a drug store on this property. On November 13, 2002, the Martin Trust and Vacheron entered into an agreement to terminate the lease for Lot 10. Sometime in early 2001 Duane Reade entered into negotiations with Paul Cassuto in an attempt to acquire the property adjacent to Lot 10. Apparently Mr. Cassauto made an offer to Duane Reade which was rejected on the grounds that the asking price was too high, and Duane Reade's offer was not accepted by Cassuto or Snapper.
In April 2002, Duane Reade submitted an application to the City of New York, Department of Buildings (DOB) in order to obtain the necessary permits for the construction of a new store on Lot 10. The DOB approved the application and issued building permits on August 20, 2002. Duane Reade commenced construction in December 2002. Snapper's counsel, in a letter dated December 6, 2002 and addressed to the architect hired by Duane Reade, asserted that the building permits were illegally issued and claimed that there were unresolved and unspecified legal issues regarding the property. Snapper's counsel in a letter dated December 11, 2002 and addressed to the Deputy Commissioner of the DOB objected to Duane Reade's application and requested that the building permits be revoked, claiming violations of the Zoning Resolution and section 36 of the General City Law. The DOB, in a letter dated March 28, 2003, notified Snapper's counsel that as regards the Zoning Resolution in question the applicant was notified that a City Planning waiver was required and that as regards General City § 36, the issue raised was answered by the construction plans. On December 20, 2002 Duane Reade wrote to the DOB, objecting to Snapper's letter of December 11, 2002.
In January 2003 Duane Reade commenced an action against Snapper in Supreme Court, New York County (index number 600141/03) in which it sought (1) declaratory judgment; (2) preliminary and permanent injunctive relief; (3) compensatory and punitive damages for tortious interference with its prospective business relations and economic advantages; and (4) compensatory and punitive damages for prima facie tort. The court therein dismissed Duane Reade's first and second a causes of action on July 2, 2003 and in a decision and order dated June 4, 2004 granted Snapper's motion for summary judgment and dismissed the remaining causes of action.
Snapper commenced the within action for declaratory judgment on February 3, 2003 and seeks (1) declaratory judgment to the effect that it has a prescriptive easement over the southeast corner of Lot 10 where it abuts plaintiff's property to the east and Beach Channel Drive to the south and extending approximately 20 feet westerly and then diagonally arched across Lot 10 over to plaintiff's property, so as to enable all vehicle traffic to enter and exit Beach Channel Drive by turning to and from such public street; (2) declaratory judgment to the effect that it has an easement by necessity over the subject portion of Lot 10; (3) compensatory and punitive damages for nuisance, based upon the construction of the drug store; and (4) preliminary and permanent injunctive relief.
Defendants commenced a third-party action against Sunoco, Inc., as mortgagee of Snapper, on February 27, 2003, which has been assigned index number 350128/2003. Defendants in their answer to Snapper's complaint asserted seven affirmative defenses, and interposed counterclaims against Snapper and third-party defendant Sunoco Inc. for (1) a declaration that Snapper and its mortgagee Sunoco do not have an easement or right of way in the adjoining property owned by the Martin Trust and leased to Duane Reade; and (2) to recover compensatory and punitive damages for trespass based upon Snapper's interference with their right to develop the premises which caused delays in construction. Defendants also seek preliminary and permanent injunctive relief enjoining plaintiff's from trespassing on the subject property, and seek to recover attorneys fees, costs pursuant to 22 NYCRR § 130-2.1, as well as pre-judgment and post-judgment interest. Plaintiff and third-party defendant Sunoco each served a reply to the counterclaims and interposed three affirmative defenses.
Snapper was granted a temporary injunction on February 7, 2003, which was vacated pursuant to an order of this court dated April 21, 2003. The construction of the Duane Reade drug store has been completed and the DOB issued a permanent certificate of occupancy on September 4, 2003. Snapper filed its note of issue on February 6, 2004, and defendants have timely moved for summary judgment.
The party seeking to prove that an easement was established must do so by clear and convincing evidence ( see Rivermere Apts. v. Stoneleigh Parkway, 275 AD2d 701). To acquire an easement by prescription, it must be shown that the use was hostile, open and notorious, and continuous and uninterrupted for a ten year period ( see Asche v. Land and Building Known as 64-29 232nd Street, 2004 NY App. Div. LEXIS 13372 [2004]; Gravelle v. Dunster, 2 AD3d 964; Turner v. Baisley, 197 AD2d 681). The Snapper property was previously owned by WTG and O'Rourke, and Lot 10 was previously leased by the Martin Trust to Vacheron. WTG, O'Rourke and Vacheron are separate entities with the same principal and President, Walter T. Gorman. Mr. Gorman, as the President of Vacheron, granted Petkel, the prior lessee of the gas station property, the right to park vehicles on Lot 10. The terms of this agreement rebut the presumption of adversity needed to establish a prescriptive easement ( see Greenhill v. Stillwell, 306 AD2d 434; Colnes v. Colligan, 183 AD2d 693). Here, the relationship between the Martin Trust, its prior tenant Vacheron, and plaintiff's predecessor in title, the Gorman corporations and the predecessor lessee, was one of cooperation and neighborly accommodation. Permission may be inferred from such a relationship ( Susquehanna Realty Corp. v. Barth, 108 AD2d 909; Hassinger v. Kline, 91 AD2d 988). It is noted that Vacheron's lease with the Martin Trust granted it the right to use the vacant lot for any legal purpose, except that of a diner, and that Vacheron permitted Petkel to enter and exit a portion of Lot 10 and to park vehicles on the empty lot, a legal use of the property. Thus, the prior use of a portion of Lot 10 by Vacheron and that of the adjoining lessee Petkel was with the implied consent of the Martin Trust. Any and all use of Lot 10 by the current owner of the gas station property was expressly ended by the sales agreement entered into by Cassuto and Wapnick. Where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right ( see Moore v. Day, 235 NY 554; Susquehanna Realty Corp. v. Barth, supra; Hassinger v. Kline, supra; Jansen v. Sawling, 37 AD2d 635, 636; Durand v. Leigh, 15 AD2d 629, 630). Plaintiff has not shown that it has asserted a right hostile to that of defendants for the prescriptive period of time.
To the extent that Snapper claims an easement based upon the conduct of the general public in entering or exiting the gas station, an easement by prescription cannot arise by use of property in common with the general public ( see Rivermere Apartments, Inc. v. Stoneleigh Parkway, Inc., supra; Estate of Thomson v. Wade, 117 AD2d 996, 997; Susquehanna Realty Corp. v. Barth, supra). Furthermore, as to the establishment of an easement by necessity, plaintiff is required to show that its use of the disputed strip of Lot 10 is absolutely necessary for the beneficial enjoyment of its property ( see Four S Realty Co. v. Dynko, 210 AD2d 622). It is undisputed that ingress and egress from plaintiff's property is available from the westbound lane of Beach Channel Drive, and plaintiff is unable to show that the disputed use of Lot 10 would provide anything more than a convenience ( Asche v. Land and Building Known as 64-29 232nd Street, supra).
That branch of defendants' motion which seeks to dismiss Snapper's cause of action to recover compensatory and punitive damages based on the claim for nuisance is granted. Snapper's cause of action for nuisance based upon the construction of the Duane Reade drug store on the adjoining lot is without merit. To constitute a nuisance the use of property must interfere with a person's interest in the use and enjoyment of land ( see Restatement [Second] of Torts § 821D; see also Domen Holding Co. v. Aranovich, 1 NY3d 117, 123-124; Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564, 568). Inasmuch as Snapper does not have an easement in any portion of the adjoining property, Lot 10, plaintiff is unable to establish that the construction of a the drug store on the Martin Trust property interferes with the use and enjoyment of Snapper's property.
That branch of defendants' motion which seeks summary judgment dismissing plaintiff's fourth cause of action for injunctive relief is granted. In view of the fact that plaintiff does not have an easement in the subject real property, no basis exists for the claim for injunctive relief.
Turning now to defendants' counterclaims, defendants' claims for compensatory and punitive damages and for injunctive relief based upon trespass must be dismissed. "Under common law principles, a person entering upon land of another without permission, 'whether innocently or by mistake, is a trespasser'" ( Golonka v. Plaza at Latham, L.L.C., 270 AD2d 667, 669 [quoting 104 NY Jur 2d, Trespass §§ 10, at 454; see Ivancic v. Olmstead, 66 NY2d 349, 352). Defendants, however, have not established that Snapper entered upon its property, or that it directed its customers to enter onto Lot 10 when entering or exiting the gas station. To the extent that defendants assert that Snapper made unfounded complaints to Duane Reade's architect and the DOB in an effort to halt or delay the construction of the drug store, such actions do not establish a cause of action for trespass. This claim is nothing more than a re-pleading of the claim for prima facie tort, which was dismissed by the court in the New York County action, and is not a viable cause of action here.
Defendants' request for sanctions in the form of attorney's fees and costs pursuant to 22 NYCRR 130-1.1 is denied, as a justiciable controversy existed as to whether an easement had been acquired by Snapper.
In view of the foregoing, defendants' motion for summary judgment dismissing the compliant and for summary judgment on their counterclaims is granted to the extent that it is the declaration of the court that Snapper Realty LLC does not have an easement in any portion of the property owned by the Martin Trust and leased by Duane Reade, identified herein as Lot 10. Defendants' motion is further granted to the extent that plaintiff's causes of action for compensatory and punitive damages based on nuisance and for injunctive relief are dismissed. That branch of defendants' motion which seeks summary judgment on the counterclaims to recover compensatory and punitive damages for trespass, injunctive relief, the imposition of sanctions in the form of attorneys' fees and costs, and pre-judgment and post-judgment interest is denied and these counterclaims are dismissed, pursuant to CPLR 3212[b].
Settle order.