Opinion
Index No. 2542/2015
03-13-2024
XXXX L.P., Plaintiff, v. 363 Prospect Place LLC and EASTERN CAPITAL CLERMONT HOLDINGS LLC, Defendants.
Plaintiff's Counsel: Neal J. Roher Law Offices of Neal J. Roher Defendant's Counsel: Colin E. Kaufman Adam Leitman Bailey, P.C.
Unpublished Opinion
Plaintiff's Counsel: Neal J. Roher Law Offices of Neal J. Roher
Defendant's Counsel: Colin E. Kaufman Adam Leitman Bailey, P.C.
Rachel E. Freier, J.
On October 30, 2023, and October 31, 2023, the plaintiff, XXXX L.P. ("Plaintiff") and the defendants, 363 Prospect Place LLC and Eastern Capital Clermont Holdings LLC ("Defendants"). (collectively, the "Parties") appeared by counsel before the Court for a bench trial. Following the trial, the Court reserved its decision. Upon deliberation and for the reasons set forth below, the Court finds partially in favor of PLAINTIFF and partially in favor of DEFENDANTS.
PROCEDURAL HISTORY
Plaintiff commenced the instant action by filing a Summons and Complaint on or about March 2, 2015, seeking (1) damages for trespass on Plaintiff's property by Defendants and its construction workers; (2) a declaration that Defendants use of the easement area for construction-related activities is beyond the scope of the easement; (3) a declaration that Plaintiff has an easement by necessity over the common driveway area and that Defendants; (4) a declaration that Plaintiff has an easement by implication over the common driveway area; (5) a declaration that Plaintiff has a prescriptive easement over the common driveway area; (6) a declaration that Plaintiff enjoys a right of way over the common driveway; and (7) a permanent injunction to enjoin Defendants and their workers from trespassing on Plaintiff's premises or interfering with Plaintiff's use of the common driveway area.
On the same date, Plaintiff also filed an Order to Show Cause seeking a preliminary injunction barring Defendants from removing, blocking, or preventing use of the common driveway area. Defendants responded with a cross-motion to dismiss for failure to state a cause of action. The Court granted the preliminary injunction and denied Defendants cross-motion to dismiss.
On or about October 14, 2015, Plaintiff filed an amended complaint, to add an eighth cause of action, seeking a declaration that the removal of the common driveway area on Defendants property violated the purpose of the easement and would cause the easement to be extinguished.
The parties entered into a license agreement on May 6, 2015, to permit construction activities in the common driveway area and the easement area ("License Agreement"). Therefore, the Parties filed a stipulation on or about October 19, 2015, withdrawing the following causes of action in Plaintiff's Amended Complaint: (1) trespass on Plaintiff's property by Defendants and its construction workers; (2) seeking a declaration that Defendants use of the easement area for construction-related activities is beyond the scope of the easement, as well as the associated clauses in the seventh cause of action seeking a permanent injunction and in the "wherefore" portion of the Amended Complaint.
Defendants filed an Answer on November 18, 2015, wherein they denied all causes of action and asserted counterclaims seeking (1) a declaration that Plaintiff has no easement by necessity, implication, or prescription, nor a right of way to traverse over Defendants' property, and (2) a declaration that Defendants' permanent easement remains in full force and effect. Plaintiff replied to the counterclaims on December 3, 2015.
On July 25, 2017, with the permission of the Court, Plaintiff filed a second Amended Complaint to add the following causes of action: (1) payment for continued use of the easement area for construction purposes, from May 1, 2016; (2) payment to fully repair the gate and fence at the end of the common driveway; (3) seeking to compel Defendants to correct pitch of new driveway surface, which allegedly directs surface water toward Plaintiff's premises; and (4) seeking to remove any structures built by Defendants on Plaintiff's property.
Defendants filed an Answer to the second Amended Complaint and counterclaims on August 28, 2017. Plaintiff filed a reply to the amended counterclaims on September 13, 2017.
Both Parties filed motions for summary judgment, which were decided in an Order dated January 26, 2022, wherein the Court denied the motions except to dismiss Plaintiff's cause of action for right of way.
The parties thereafter proceeded to trial on October 30 and 31, 2023.
TRIAL SUMMARY
At the outset of the trial, the Parties entered a trial stipulation of facts onto the record as Court Exhibit 1. The Parties stipulated to the following: Plaintiff's principal office is located in Queens, New York, and V.N. is Plaintiff's predecessor and principal. The defendant companies are LLCs, both with a principal office in New York, New York. V.N. purchased the property located at 348 St. Marks Avenue/686A Washington Avenue ("348 St. Marks") on December 28, 1998, from Interfaith Medical Center ("Interfaith"), which also owned and retained ownership of the adjacent plot located at 344 St. Mark's Avenue/363 Prospect Avenue ("363 Prospect"), which Interfaith used as a warehouse. At the time of this purchase, Interfaith retained, in the deed, an express easement "for the purpose of permitting ingress and egress of persons and motor vehicles over the easement area to the adjoining property" and providing that Interfaith would pay the cost to maintain and repair the area ("Easement"). Under the terms of the easement, V.N. agreed "to refrain from any act which would impair the use of the easement area" for the means described above.
Court Exhibit 1 further stipulated that on April 19, 2005, V.N. transferred title of 348 St. Marks to Plaintiff. On March 19, 2012, Defendants purchased 363 Prospect from Interfaith. No written reciprocal easement or agreement was ever executed in favor of Plaintiff over Defendants' portion of the driveway.
Additionally, the Parties stipulated in Court Exhibit 1 that when V.N. acquired 348 St. Marks, a driveway existed between 348 St. Marks and 363 Prospect, which was partly on V.N.'s property and partly on Interfaith's property ("Driveway Area"), and that this driveway provided the only access to the loading dock at 363 Prospect. Further, after purchasing 363 Prospect, Defendants began construction which converted the two-story warehouse to a four-story, multi-family apartment building. After construction started, the Parties entered into a license agreement regarding the use of the driveway during construction, which included that Defendants would pay Plaintiff a monthly license fee of $2,100.00. The Parties also stipulated to the entry of the deeds, license agreement, surveys, Google maps, and Google map photographs into evidence.
I. Plaintiff's case
Plaintiff's sole witness was Plaintiff's predecessor and principal, V.N. V.N. testified to her educational and employment history, leading up to her purchase of 348 St. Marks. After she purchased the property, subject to the easement in the deed ("Easement"), Interfaith used the full driveway between the two subject premises to drive their trucks to the warehouse loading dock and would often park behind V.N.'s building or in the driveway. V.N. also used the full driveway to drive her car to park in the area behind her building.
In 2000, V.N. completed the renovation of her property into a multi-apartment, residential unit with a commercial space. Workers and tradesmen servicing her building would use the full driveway, as well, to drive to the back of V.N.'s building.
When V.N. learned that Defendants had purchased the adjacent property and intended to redevelop it into an upscale apartment building, she was concerned that Defendants would use the driveway in a way that it could not be shared, and that the construction work would affect her building and her tenants.
In July 2012, V.N. hired an attorney to send a letter to Defendants, expressing her fears that the construction would result in an increase in traffic, noise, and pollution on and around the driveway between the properties. Defendants did not respond to the letter.
Once V.N. became aware that Defendants intended to excavate the driveway, she herself sent a letter to Defendants, dated December 15, 2013, stating that she objected to the excavation of the driveway and that such action was contrary to the Easement. She received no response until March 20, 2014, when she received a letter from Defendants' attorney, Seyfarth Shaw, which noted that when V.N. parked her car, or permitted others to park their vehicles, within the easement area, it interfered with Defendants rights under the Easement, and V.N. was directed to cease and desist from such actions.
V.N. then testified that in 2014, and without permission from her, Defendants had many construction trucks, workers, and vendors coming in on her side of the driveway - and occasionally parking in the easement area - and that construction material was left against her building and fence.
On May 6, 2015, the Parties entered into a license agreement, permitting Defendants to use Plaintiff's property for construction activities "without limitation," in exchange for payments of $2,100.00 per month. Furthermore, Defendants were obligated to repair any damage to the easement area, fence, gate, driveway, and V.N.'s property at the conclusion of their construction. Defendants were also to make any necessary repairs to drains located on the driveway which caused any drainage to flow toward Plaintiff's property.
Defendants tendered a final payment in May 2016, by check, which Plaintiff did not cash. V.N. testified that she did not cash the May 2016 check because Defendants' construction activities continued until January 2017, but no further payments were made.
According to V.N., Plaintiff's property suffered damage because of Defendants' construction activities: cracking of the driveway concrete from heavy construction vehicles, cracking underneath the fence put in at the entrance to the driveway, soot on the side wall of her building from construction trucks idling, writing on the side of her building by one of the contractors, cement and debris on a first-floor window, and some bricks from the corner of Plaintiff's building having been knocked off. V.N. testified that Defendants did not make any repairs.
Additionally, V.N. testified that Defendants did not replace a drain they had removed from the middle of the driveway, on Plaintiff's property, in violation of the license agreement. V.N. alleged that the failure to replace the drain led to water pooling at the base of Plaintiff's building. However, she could not say where the water had come from. Because the water at the base of the building was seeping into the basement and causing water damage, V.N. had the base of Plaintiff's building repaired and water-proofed to prevent further damage. She also replaced the bricks on the corner of the building. V.N. testified that the repairs cost her $2,892.00, but was unable to provide any receipt or proof of payment.
As part of their construction, Defendants replaced the driveway adjacent to their building with private patios for ground floor apartments. Because of people going in and out of the patios and, according to V.N., children playing and adults walking in the Driveway Area (V.N. asserted that it was no longer a driveway, but a courtyard) she is no longer able to safely drive her car on the driveway to the rear of Plaintiff's property for fear of hitting someone. In order to mitigate her liability amid these conditions, she placed a padlock on the gate closing off vehicular access from the driveway, including the easement area. Therefore, V.N. alleged, she was unable to use the parking area behind Plaintiff's building. V.N. also alleged that Defendants regularly place some of their garbage on Plaintiff's property when it is awaiting collection.
Under cross-examination, V.N. admitted that at the time she purchased 348 St. Marks, she had previously owned other properties, was represented by counsel, and understood that, under the easement, she was restricted from doing anything that would prevent vehicles or pedestrians from ingress or egress using the easement area. V.N. also acknowledged that her office in the rear of the building and the area to the rear (where she would like to park her car) is accessible by foot through the front door of the building and that, since she padlocked the gate to the easement area, she has parked her car on the street and walked to her office.
V.N. agreed that, when Interfaith had owned the property adjoining Plaintiff's, they had a neighborly accommodation to allow her to use their portion of the driveway to drive to the rear of her property, but that there was never a reciprocal easement. She also acknowledged that Interfaith drove heavy trucks over the driveway, including the easement area, and that she had never retained an engineer to determine whether the damage to the easement area was due to Defendants' actions during construction or another source.
Additionally, while on cross-examination, V.N. alleged that the corner of one of the private patios is on her property line.
Following the close of Plaintiff's case, Defendants moved for judgment. The Court denied the motion, and proceedings continued with Defendants' case.
II. Defendants' case
Defendant introduced two witnesses, F.J. and E.H.
A. F.J.
F.J., the superintendent at the apartment building at 363 Prospect, testified that V.N. placed a padlock on the gate which opened onto the easement area. F.J. explained that when a company came to take a soil sample for Defendants, they were unable to fit their equipment through the pedestrian gate in the fence across the shared Driveway Area entrance. He, therefore, cut the padlocked chain to allow them in. In response, V.N. called the police and reported him for cutting the chain. Although he offered to replace the padlock, V.N. allegedly refused the offer because she did not want Defendants to have a copy of the key.
F.J. testified that he cleans and maintains the Driveway Area when needed and, when it snows, he shovels and salts the area. He testified that one time, he asked V.N. how it is that she can park in the area, but he has to clean the snow, and V.N.'s response was, "No, you continue cleaning it" (tr. At 259, ln 8-9).
According to F.J., when he hoses down the Driveway Area, the water flows to the drain on Defendants' property because of the pitch of the driveway - that is, it is higher by Plaintiff's building and lower by Defendants'.
On cross-examination, Plaintiff's counsel asked F.J. if he ever saw people walking dogs children playing in the common area. He acknowledged that he had, but, on redirect, explained that while people walk through the common area to go in and out, if, for instance, someone unleashes their dog in the area, building management would inform them that was not allowed. He testified that management even went so far as to deactivate one tenant's fob until she agreed to leash her dog in the common area.
When Plaintiff's counsel questioned F.J. about the garbage allegedly left on Plaintiff's property, F.J. insisted that the garbage is always placed on Defendants' property.
B. E.H.
Defendants next called E.H., Defendants' manager. E.H. testified as to his history as a property developer and that, when negotiating for 363 Prospect, he considered the easement to be a valuable commercial asset.
E.H. confirmed that the Parties entered into a license agreement once Plaintiff objected to Defendants' using the common Driveway Area, including the easement area, during construction. He agreed that payments were made through May 2016, but testified that construction was complete once the building received its Certificate of Occupancy in September 2016. On cross-examination, E.H. admitted that the construction took place on Defendants' property between May and September 2016, and that Defendants' used the driveway for construction vehicles during that period. E.H. asserted, though, that this was under their easement rights rather than under the license agreement.
According to E.H., the driveway concrete was cracked and in poor condition at the outset of construction. Because of that damage, and pursuant to the terms of the license agreement, Defendants replaced the original driveway concrete with a durable surface that could support traffic. E.H. also stated that Defendants pay for the cleaning, maintenance, and repair of the entire Driveway Area.
Contrary to V.N.'s allegations, E.H. claimed that the private patios built are all entirely on Defendants' property.
E.H. testified that the access provided by the common driveway and easement area was intended as a means of egress on the St. Mark's Avenue side of the building, as required by fire safety codes. He also noted that it adds value to Defendants' property.
On cross-examination, E.H. testified that he was unaware at the time Defendants purchased 363 Prospect that Plaintiff used the portion of the driveway on what became their property. While Plaintiff's counsel noted that Defendants' earlier construction plans called for replacing the concrete pavement of the driveway with a planted yard, E.H. testified that it was not replaced with a planted yard, but with new concrete. However, E.H. also stated that he believes Defendants' building to have a "common courtyard" - a point which Plaintiff frequently noted was different from the space continuing as a driveway in purpose.
DISCUSSION
Following the trial and the post-trial memoranda submitted thereafter, the Court determines as follows on each cause of action:
As an initial matter, "An easement is a permanent right, conferred by grant or prescription, authorizing one landowner to do or maintain something on the adjoining land of another, which, although a benefit to the land of the former and a burden on the land of the latter, is not inconsistent with general ownership. An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it" (49 NY Jur. 2d Easements § 1). An easement may be express or implied (id., § 7); an express easement, or appurtenant easement, is inseparable from the land which is benefited by it (id., § 144).
I. Easement by Necessity
Although the Parties agree that no express reciprocal easement existed in favor of Plaintiff, Plaintiff contends that an easement exists by necessity or implication.
An easement by necessity is created where there is unity of title, which is subsequently separated, and the land conveyed to one party by a common grantor is entirely surrounded by the land from which it was severed, and therefore there is no way to access that land from the public street (Wolfe v Belzer, 184 A.D.2d 691 [2d Dept 1992]). The party asserting an easement by necessity must demonstrate unity and subsequent separation of title and "that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party's land" (Faviola, LLC v Patel, 114 A.D.3d 823, 824 [2d Dept 2014]).
The issue of unity and subsequent severance of title is not disputed here. However, it was well-established at trial that Plaintiff's property - and even the area at the rear of Plaintiff's property - is not landlocked and inaccessible but for crossing through Defendants' property. Though Plaintiff may not be able to drive a car to the rear of their building without using Defendants' property, this does not rise to the level of absolute necessity to obtain access to Plaintiff's land. Plaintiff can access the whole of their land on foot without needing to use Defendants' property. And as V.N. testified, since locking the gate at the entrance to the driveway, she has parked her car on the street and walked on foot to both her building and to her office at the rear of the building.
Accordingly, no easement by necessity exists.
II. Easement by Implication
Plaintiff also contends that a reciprocal easement existed by operation of law, based on her history of using Defendants' portion of the driveway, when it was owned by Interfaith and then by Defendants', in order to access the rear of her building for parking, as she could not park there any other way. Plaintiff accordingly asserts that she has an easement by implication over Defendants' portion of the Driveway Area.
To establish an easement by implication, a party must prove that the use of the alleged easement is reasonably necessary for beneficial enjoyment of their property (Asche v Land and Bldg. Known as 64-29 232nd St., 12 A.D.3d 386 [2d Dept 2004]). Although this is a less stringent burden than the "absolute necessity" required by an easement by necessity, it still requires an actual necessity, and not a mere convenience (Heyman v Biggs, 223 NY 118, 125-26 [1918]).
Plaintiff argues that an easement over Defendants' portion of the Driveway Area is necessary to the beneficial enjoyment of their land because they cannot use the area to the rear of the building as a parking space without driving to the rear, and Plaintiff's portion of the driveway is not, on its own, wide enough throughout to accommodate a vehicle driving to the rear. Furthermore, Plaintiff established that she had used portions of Defendants' driveway for that purpose dating back to when she first purchased the property from Interfaith.
However, "[s]ince access to off-street parking is a mere convenience, the plaintiff cannot establish that the easement is a reasonable necessity. Therefore, the plaintiff has no easement by implication based on the preexisting use over the defendant's driveway" (Bonadio v Bonadio, 200 A.D.3d 747 [2d Dept 2021]; see also Asche v Land and Bldg. Known as 64-29 232nd St., 12 A.D.3d 386 [2d Dept 2004]). Although it can be frustrating and difficult to find street parking in Brooklyn, the Second Department has already held that access to off-street parking is a mere convenience and not a necessity. The Court reiterates that, as confirmed by V.N. during cross-examination, during the time in which she chose not to use the driveway, she was able to park on the street and walk to the rear of her building.
Accordingly, no easement by implication exists.
III. Easement by Prescription
Plaintiff withdrew their claim for an easement by prescription (tr. at 247).
IV. Permanent Injunction
Plaintiff having failed to establish that they have any easement by operation of law over Defendants' portion of the Driveway Area, there is no cause for any permanent injunction to enjoin Defendants from preventing Plaintiff from using the portion of the common Driveway Area located on Defendants' property.
The Court therefore finds for the Defendants on their first counterclaim. Plaintiff has no easement by necessity or implication, and Defendants may choose to use the portion of the Driveway Area located on their property for any legal purpose they see fit.
V. Extinguishment of the Easement
An easement is not easily set aside. "It is the law of this State that an easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession" (Gerbig v Zumpano, 7 N.Y.2d 327, 330 [1960]). Plaintiff contends only that the easement in the instant matter was extinguished by abandonment.
Abandonment of an easement requires both the intention to abandon and an overt act (or failure to act) which demonstrates that intention (Id. a t 331). Furthermore, "the mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment" (Roby v New York Cent. & H.R.R. Co., 142 NY 176, 181 [1894].)
Plaintiff contends that Defendants' intention to abandon the easement is seen in their replacement of the driveway concrete with larger concrete pavers and reference to the area as a "common courtyard," rather than as a driveway. Furthermore, Plaintiff argues that the conversion of the building at 363 Prospect from a warehouse to an apartment building meant an abandonment of the purpose of the easement.
Where an easement is for the express purpose of "ingress and egress," the easement is not extinguished by a change in the use of the premises of the dominant property (Arnold v Fee, 148 NY 214 [1896]). The Court notes that the easement in this matter specifies only that is "for the purpose of permitting ingress and egress of persons and motor vehicles over the easement area to the adjoining property." The easement does not specify that it is only for use to drive to a loading dock or to a warehouse. It does not even limit itself to the ingress and egress of motor vehicles. Therefore, the change in use of the building has not impacted the terms of the easement, which Defendants would still use for the ingress and egress of vehicles and pedestrians, but for Plaintiff's padlock. Neither has the change in paving negated the easement, as it can still be used to the express purposes named in the easement.
Additionally, the Court notes that far from a clear showing that Defendants intended to abandon the easement, Defendants established an intention to continue use of the easement as a state-mandated second egress from their building. Furthermore, according to Plaintiff's statement to F.J. that he had to continue to clean snow from the entire driveway area, it appears to the Court that despite the change in building use and its driveway material, Plaintiff still maintained the continuation of the easement by requiring Defendants to abide by its maintenance requirements.
Accordingly, Plaintiff has not established that Defendants abandoned or otherwise extinguished the easement, and the easement remains in effect. The Court finds in favor of the Defendant on their second counterclaim: the permanent easement over Plaintiff's portion of the common Driveway Area remains valid and in full force and effect.
Therefore, Plaintiff is hereby ORDERED to remove any chain or padlock from the gate at the entrance to the easement area, in accordance with their obligations under the easement "to refrain from any act which would impair the use of the easement area as a means of ingress and egress."
VI. License Agreement Violations
License Fee
The License Agreement between the parties provided that Defendants would pay Plaintiff $2,100.00 per month in consideration of the agreement, to be paid from the execution of the Agreement to its expiration or termination. By its terms, the term of the License Agreement was "for a period of at least seven months from the date hereof, but in no event longer than twelve months unless agreed to in writing by the Parties. In the event [Defendants wish] to terminate this Agreement after such seven month period, [Defendants] shall provide thirty days' written notice of termination to [Plaintiff]" (License Agreement at 7).
Although the copy of the License Agreement provided to the Court was undated, the Stipulation filed with the Court on October 19, 2015, referred to "the parties' License Agreement dated May 6, 2015." Therefore, by its terms, the License Agreement expired May 6, 2016, and neither party presented any evidence that the Agreement was extended in writing.
Therefore, under the terms of the License Agreement, Defendants only owed monthly payments to Plaintiff through May 2016. The Parties agreed that Defendants had issued a check to Plaintiff for May 2016, but that Plaintiff had chosen not to deposit it. Having issued checks to Plaintiff for all months they were obligated, Defendants do not owe Plaintiff any further payments under the License Agreement.
Repairs to the Gate and Fence
The License Agreement provides that, "Upon completion of the Project, [Defendants] shall complete all repairs to the Easement Area, the fence and gate located on the northern portion of the Driveway, the Driveway, and all damage to [Plaintiff's] Property caused in connection with the Project at [Defendants'] sole cost and expense" (License Agreement at 3).
Plaintiff now contends that, as Defendants failed to coordinate with them to repair the gate and fence, as well as the cracking underneath, pursuant to the License Agreement, Defendants must pay Plaintiff the costs of repair. However, at trial, Plaintiff neither testified that repairs have been made nor provided any estimate of the costs that would be incurred in so repairing the gate and driveway entrance. Therefore, the Court cannot calculate a cost to be paid for repair.
However, the Court finds that Defendants must make the repairs to the gate and fence, as well as the driveway entrance underneath. Although Defendants alleged that Plaintiff could not establish the cracking was caused by their construction rather than by the heavy trucks previously driven over the easement area by Interfaith, Defendants continue to have an obligation under the easement to maintain repair that area.
However, it was well-established at trial that Plaintiff has placed a padlock on the gate and has, in the past, called police on Defendants for removal of the padlock. It is unclear, then, if Plaintiff has not allowed Defendants access to the gate and, by extension, the ability to fix the area under it, how Plaintiff expected Defendants to make those repairs. Once the padlock is removed, as Ordered above, Defendants are hereby ORDERED to repair the cracked area beneath the gate at the entrance to the easement area, as well as any damage to the gate and fence.
Drainage and Driveway Pitch
The License Agreement provides,
[Defendants] shall coordinate with the [Plaintiff] to make any necessary repairs to any drains currently located on the Driveway which are causing any drainage to flow on or towards the [Plaintiff's] Premises at [Defendants'] sole cost and expense. [Defendant] agrees to investigate with [Plaintiff] the current condition of the Driveway to determine the extent to which such condition is causing moisture accumulation into, beneath, or near the western facing wall of the [Plaintiff's] Premises. In the event the current condition of the Driveway is causing such moisture accumulation, [Defendants] will make commercially reasonable repairs to the Driveway during the course of the project.(License Agreement at 3-4).
V.N. testified that water had pooled at the base of Plaintiff's building, which then seeped into Plaintiff's basement. However, V.N. was unable to state where the water had originated or how it had ended up at the base of her building; instead, Plaintiff asks the Court to assume that the water flowed there from the Driveway Area.
Furthermore, while it was noted at trial that Plaintiff's security cameras which cover the Driveway Area could shed some light on the issue, the video recorded by those cameras has been recorded over, as the cameras are set to record over earlier recordings every three days.
"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a 'culpable state of mind,' and 'that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense'" (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543, 547 [2015], quoting VOOM HD Holdings LLC v. EchoStar Satellite L.L.C., 93 A.D.3d 33, [1st Dept 2012]). For the purposes of spoliation, a culpable state of mind may include ordinary negligence (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 A.D.3d 33, 45 [1st Dept 2012]).
There is no exception for automatic deletion.
As has been stated, '[I]n the world of electronic data, the preservation obligation is not limited simply to avoiding affirmative acts of destruction. Since computer systems generally have automatic deletion features that periodically purge electronic documents such as e-mail, it is necessary for a party facing litigation to take active steps to halt that process'. Once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data (Id. at 41, quoting Convolve, Inc. v Compaq Computer Corp., 223 FRD 162 [SDNY 2004], order clarified, 00 CIV. 5141 GBDJCF, 2005 WL 1514284 [SDNY June 24, 2005 [1st Dept 2012] and citing Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., 685 F.Supp.2d 456 [SDNY 2010], abrogated by Chin v Port Auth. of New York & New Jersey, 685 F.3d 135 [2d Cir 2012]).
In the instant case, Plaintiff's security cameras were within their control and Plaintiff was well-aware first of the potential for litigation - as they themselves brought the action - and then of the existence of litigation. Plaintiff should have known that the footage captured by the security cameras was relevant to the litigation as it filmed the area in which most, if not all, of the contended activity took place. Even if Plaintiff did not believe that the footage was important to their case, Defendants requested all video representation of the area as part of discovery (tr. at 233, ln 2-5). At that point Plaintiff was certainly on notice that the footage was relevant to the litigation, either to prove their claim or to aid Defendants in their defense of the action. Plaintiff's failure to preserve any of the security footage, particularly once it was requested, was - at best - ordinary negligence.
"[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence it may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence" (Biniachvili v Yeshivat Shaare Torah, Inc., 120 A.D.3d 605, 606 [2d Dept 2014]). Accordingly, Defendants' request for an adverse inference for the destruction of evidence in the automatic rewriting of Plaintiff's security cameras - on which decision was reserved at trial - is hereby GRANTED.
Therefore, the Court must infer that the footage from the security cameras would show that the water which pooled at the base of Plaintiff's building did not flow from the Driveway Area. Combined with a lack of any other evidence or testimony as to the source of the water, Plaintiff failed to establish that either the pitch of the driveway or the removal of the drain mid-driveway causes any water to flow to their building or cause damage.
In fact, the terms of the License Agreement provided that the parties would work together to investigate the cause of the water accumulation and that only if that investigation determined that the damage was caused by the condition of the driveway would Defendants be obligated to pay for repairs. Plaintiff, though, does not point to any such investigation or results thereof to indicate that the driveway or its condition is the source of the water accumulation. Conversely, Defendants' witness, F.J., testified that when he uses a water hose to clean the driveway, the water flows toward Defendants' building.
However, Defendants were obligated under the terms of the License Agreement to work with Plaintiff in such an investigation, and there is no indication from either party that this investigation was completed. Per the terms of the License Agreement, Defendants are ORDERED to cooperate with Plaintiff in an investigation of the cause of water "accumulation into, beneath, or near the western facing wall of the [Plaintiff's] Premises" (License Agreement at 3) and shall make any necessary repairs to the driveway, including the addition of more drains as needed, should the investigation determine that the water accumulation is due to the condition of the driveway.
Property Damage
Plaintiff also sought the cost of repairs for property damage allegedly caused by Defendants' construction, including repairs and waterproofing to the base of Plaintiff's building for water damage allegedly caused by the removal of the mid-driveway drain, removal of soot from and painting of the outer wall of Plaintiff's building, and the removal of particulates stuck to the window on Plaintiff's building. Per the License Agreement, following construction, Defendants would be required to repair "all damage to the [Plaintiff's] Property cause in connection with the [construction] Project at [Defendants'] sole cost and expense" (License Agreement at 3) and "to paint the western facing wall of the [Plaintiff's] Premises, and to otherwise repair such wall from any damages sustained as a result of [Defendants'] activities in connection with the [construction] Project at [Defendants'] sole cost and expense" (id. at 4).
While Defendants would be liable under the License Agreement to repair any damage caused to Plaintiff's property by Defendants' construction, Plaintiff failed to introduce sufficient evidence to establish that the damage to their building was, in fact, caused by Defendants' construction. As discussed above, Plaintiff has provided no evidence that the water damage to her building was caused by the pitch of the driveway or by any other action on Defendants' part. Coupled with the adverse inference resulting from the failure to retain the security camera recordings, the Court finds that Plaintiff has not established that Defendants' construction was the cause of any of the damage to their property.
Furthermore, Plaintiff has failed to provide any evidence of their damages. Plaintiff alleges that they paid $2,892.00 for the repairs made to and waterproofing of the base of their building; however, the Court notes that Plaintiff was unable to provide any evidence that the payment was made, or the amount paid. Plaintiff has neither repaired the other damage to their building with any proof of payment, nor did they submit to the Court any signed estimate of the cost of repairs.
Additionally, under the terms of the License Agreement, Defendants were required to add Plaintiff as an additional insured to their commercial general liability insurance policy (License Agreement at 6). There is no evidence that Defendants did not comply with this clause, and Plaintiff has introduced no evidence that any claim was submitted to the insurance for damage.
Accordingly, the Court finds in favor of DEFENDANT on the issue of property damage.
Removal of Structures
Finally, Plaintiff seeks an order from the Court requiring Defendants to remove structures which are located on Plaintiff's property. However, aside from a claim during V.N.'s testimony that one corner of one private patio fencing is located on her property, Plaintiff introduced no evidence to establish that the fencing is not within Defendants' property. Accordingly, on this cause of action, the Court finds in favor of DEFENDANT.
CONCLUSION
Plaintiff has failed to establish that they have any easement by necessity or implication by operation of law over Defendants' portion of the Driveway Area. Additionally, Plaintiff did not establish that Defendants abandoned their express easement, as Defendants demonstrated an intent to continue using the easement.
Additionally, both Parties agreed that Defendants had issued payment for each month of the License Agreement through May 2016, which was the expiration of the License Agreement, and the Court saw no evidence of any written extension. Further, Plaintiff failed to prove that the water accumulation by their building was caused by the condition of the driveway. They also failed to establish that their property damage was caused by Defendants' construction, nor did they prove any amount of damages. Plaintiff also did not establish that any structure constructed by Defendants is on Plaintiff's property.
Under the terms of the easement, Plaintiff is ORDERED to remove the padlock on the gate at the entrance to the easement area. Pursuant to the License Agreement, once that padlock is removed, Defendants are ORDERED to repair any cracking under the gate. Furthermore, Defendants are ORDERED to work with Plaintiff in investigating the cause of the water accumulation by the western wall of Plaintiff's building and, if the cause of the accumulation is determined to be the condition of the driveway or absence of a necessary drain, Defendants are to pay the cost to repair the condition and/or add the drain to the driveway.
This is the Decision and Order of the Court.