Opinion
DOCKET NO. A-0884-15T4
02-03-2017
TRANSLAND INVESTMENTS, LLC, Plaintiff-Respondent, v. LING YAN QUAN, Defendant-Appellant.
Kevin K. Tung, attorney for appellant. Frank P. Marciano, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-147-14. Kevin K. Tung, attorney for appellant. Frank P. Marciano, attorney for respondent. PER CURIAM
Defendant Ling Yan Quan appeals from an October 9, 2015 Chancery Division order denying defendant's summary judgment motion and granting summary judgment to plaintiff Transland Investments, LLC. We affirm.
Plaintiff is the present owner of property located at 234 Hancock Avenue, Jersey City. Defendant owns the adjoining property at 232 Hancock Avenue. A common driveway runs between the two properties, which was previously used to provide access to garages in the rear of both properties.
A 1951 deed to the 234 Hancock Avenue property contained a provision stating that the conveyance was
SUBJECT to an easement of right of way in a common driveway for the purpose of ingress or egress of automobiles to and from the garages erected in the rear of the property, immediately adjoining on the south, known as 232 Hancock Avenue, Jersey City, New Jersey, for such time and as long as the said garages shall remain standing as presently laid out and used.Title to the 234 Hancock Avenue property was again conveyed in 1977. The 1977 deed continued the driveway easement, maintaining the same easement language set forth in the 1951 deed.
[(Emphasis added).]
On October 6, 2014, plaintiff filed a complaint in the Chancery Division seeking, among other things, to declare the driveway easement extinguished and to enjoin and restrain defendant from trespassing on plaintiff's property. In August 2015, defendant filed a motion for summary judgment. Defendant argued that the driveway easement was intended to continue perpetually as long as the garages remained standing as laid out and used, and that the easement remained in effect because she continued to use the common driveway for ingress and egress to the rear garage since she acquired the property in 2012.
Plaintiff opposed the motion and cross-moved for summary judgment. Plaintiff argued that the easement was extinguished when the garages at 232 Hancock Avenue were partially dismantled around 1978 to make room for the construction of a swimming pool. After the partial demolition, all that remained of the original structure were the exterior brick walls. Between 1978 and 2004, the owner of 232 Hancock erected several pools within these brick walls. Plaintiff's cross-motion was supported by the certification of Edward F. Crawford, who lived at the two properties with his family from 1978 until 2012. Crawford explained that around 1978, he assisted his father in removing the roof of the garage at 232 Hancock, and the wall between the two parking spaces in the garage, to make room for the swimming pool. Altogether, three pools were built over the years in the space once occupied by the garage, which was never rebuilt during the entire period his family owned the two properties.
On October 9, 2015, Judge Hector R. Velazquez conducted oral argument, issued an extensive written opinion, and granted summary judgment to plaintiff. After reviewing the deeds and controlling case law, the judge concluded:
The language of the 1951 and 1977 easements is clear and unambiguous as to the rights granted to the owners of 232 Hancock. The parties intended that the owner of 232 Hancock be granted "a right of way in a common driveway for the purpose of ingress or egress of automobiles to and from the garages erected in the rear of the property immediately adjourning on the south known as 232 Hancock Ave., Jersey City, New Jersey, for such time and as long as said garages shall remain standing as presently laid out and used." Thus it is clear that the parties intended the easement to be used solely for vehicular access to the garages in the rear of the properties, but only so long as those garages remained in substantially the same conditions as they existed in 1951 and 1977. Clearly, the garages have not remained in substantially the same conditions since 1951. In fact the evidence unequivocally demonstrates that not only was the garage structure substantially demolished, but the easement was extinguished as to its original purpose when the remaining brick walls[] were utilized for recreational purposes, including the erection of several swimming pools from 1978 to 2011. Accordingly, I find that the easement has been extinguished not only by abandonment but also by alteration as well.The judge entered a memorializing order extinguishing the driveway easement and permanently enjoining and restraining defendant from trespassing on plaintiff's property. This appeal followed.
We review a grant of summary judgment de novo, observing the same standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Summary judgment should be granted only if the record demonstrates there is "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If no genuine issue of material fact exists, the inquiry then turns to "whether the trial court correctly interpreted the law." DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (internal quotation mark and citations omitted).
On appeal, defendant argues that Crawford's certification constitutes inadmissible hearsay and that the trial court erred in relying on it. Defendant further argues that the credible evidence fails to support the court's findings that the driveway easement was extinguished by abandonment and by alteration. We find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We have carefully reviewed defendant's contentions and the controlling legal principles and affirm substantially for the reasons expressed by Judge Velazquez in his thoughtful written opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION