|Braunstein v Hodges|
|2016 NY Slip Op 50249(U) [50 Misc 3d 1223(A)]|
|Decided on March 2, 2016|
|Supreme Court, Kings County|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Barry Braunstein and JACQUELINE BRAUNSTEIN, Plaintiffs,
Joan Hodges, Defendant.
The following papers numbered 1 to 3 read on this motion:Papers Numbered:
In this real estate action, plaintiffs BARRY BRAUNSTEIN and his wife JACQUELINE BRAUNSTEIN (the BRAUNSTEINS), owners of 3478 Bedford Avenue, Brooklyn, New York (Block 7660, Lot 70, County of Kings), commenced the instant action against their neighbor JOAN HODGES (HODGES), owner of 3472 Bedford Avenue, Brooklyn, New York (Block 7660, Lot 68, County of Kings), pursuant to RealProperty Actions and Proceeding Law § 1501, for the Court to declare: that an easement conveyed in a 1961 deed granted to the owner(s) of 3478 Bedford Avenue the rights of ingress and egress is still in full force and effect; and, to enjoin and restrain defendant HODGES, and her heirs, successors and assigns from parking or otherwise interferingwith the ingress and egress of plaintiffs the BRAUNSTEINS in the driveway of 3472 Bedford Avenue. Plaintiffs move in the instant order to show cause, pursuant to CPLR § 6301, for a preliminary injunction to enjoin defendant HODGES and any and all people, including her employees, relatives, invitees, guests, friends and acquaintances from parking any vehicle or otherwise placing any vehicle or obstacle in the driveway or any portion thereof located partly on the land owned by plaintiffs the BRAUNSTEINS and partly on the land owned by defendant HODGES. Plaintiffs' order to show cause is denied because the subject easement has been extinguished by adverse possession.
Plaintiffs, the BRAUNSTEINS, own the land and the single-family house at 3478 Bedford Avenue. Their next door neighbor, defendant HODGES, is the owner of the land and the single-family house at 3472 Bedford Avenue. The adjoining and contiguous parcels of land owned by plaintiffs the BRAUNSTEINS and defendant HODGES share a driveway. Plaintiffs must use the driveway to access their garage, which is solely on their property and located to the rear of defendant HODGES' property. Plaintiffs allege that defendant HODGES' parking of vehicles on the driveway denies them access to their garage.
Defendant HODGES and her late husband, Gilbert R. Hodges, purchased the property on June 26, 1961 from David and Tillie Rubin. The June 26, 1961 Deed includes a Rider for an easement for the use of the subject driveway by the owners of the adjoining houses.
David and Tillie Rubin, who also owned 3478 Bedford Avenue, sold 3478 Bedford Avenue to Lawrence and Vivian Gold, on March 10, 1966. This Deed states that there is "an easement or right of way for ingress and egress for pleasure automobiles only over adjoining premises as follows: . . . [recitation of the metes and bounds of the easement]. Being the same [*2]easement contained in a Deed made the 26th day of June 1961 between DAVID RUBIN and TILLIE RUBIN, his wife as parties of the first part and GILBERT R. HODGES and JOAN HODGES, his wife, as parties of the second part."
On May 2, 1972, subsequent to the death of Gilbert R. Hodges, the Golds and defendant HODGES executed a written agreement, recorded in the Office of the City Register, Kings County, at Reel 566, Pages 850-853, in which defendant HODGES acknowledged that the Golds had "an easement or right of way for ingress and egress for pleasure automobiles only over adjoining premises now owned by" defendant HODGES. The agreement then recites the same easement boundaries as stated in the 1961 Deed.
The BRAUNSTEINS purchased 3478 Bedford Avenue from the Golds on February 13, 2002. For a number of years, the BRAUNSTEINS were renovating their property and had workers using the subject driveway to finish construction and gain access to their garage.
Plaintiffs commenced the instant action for a declaration that defendant HODGES violated the subject easement by parking vehicles in the driveway, which denied plaintiffs the BRAUNSTEINS and/or their workers and agents access to their garage. Defendant HODGES' counsel, in his verified answer asserts an affirmative defense that "defendant has established adverse possession of the premises and driveway in issue" . . . and "defendant's adverse possession was open, obvious, notorious, continuous, exclusive and hostile to plaintiffs' interest in the premises and driveway in issue." Further, defendant makes a counterclaim that "from the 1st day of March 1988 until the present date, defendant has been in open, hostile, obvious, notorious and continuous possession of the premises and driveway in issue" and "such possession has always been open, obvious, notorious, continuous, exclusive and hostile to the interests of plaintiffs and plaintiffs' predecessors in title."
Moreover, defendant HODGES, in her affidavit in opposition to the instant order to show cause claims:
I alone own the entire easement by virtue of the adverse possession and my unilateral use of the driveway for over 30 years.
When my husband Gilbert Hodges and deponent executed the "Easement," Mr. and Mrs. Gold told us the easement was created to protect us. Over and over again through the thirty (30) years we utilized the driveway as our own property and parked our cars on the driveway at will. . . our private use of our private driveway was open, obvious, notorious, hostile and adverse even to the interests of Mr. and Mrs. Gold who never utilized their garage for cars but only for storage and was under mine and our claim of right to the driveway. If for any reason they had to drive a car to their garage or receive a delivery they, most respectfully, requested we move our cars from the driveway to permit entry for that purpose only and then we would put our cars back onto the driveway. . . . from the date the plaintiffs purchased the property in 2002 until the date of the order to show cause they never once made any claim to my driveway. Indeed, during construction of plaintiffs' premises my car was always on the driveway and if they or their agents respectfully requested I move my car temporarily to permit delivery I could then return my car to my driveway. I can't remember anytime in the twelve (12) years that it was I who moved the car. I gave the keys to one of the plaintiffs' agents or workers who moved the car and then put it back in its parking space and returned the keys.
Defendant's counsel, in support of defendant HODGES' claim, attached to her opposition papers the affidavits of non-parties Louann Campardella and Madeline Falco. Ms. Campardella supports the claim of defendant HODGES that during the years of construction by the BRAUNSTEINS defendant HODGES always complied with the requests of the BRAUNSTEINS' workers and/or agents' requests to have her car moved from the driveway, either by giving her car keys to the workers "for them to back the car out and then after the delivery of the building materials to park the car back onto the driveway or just moving it herself." Further, Ms. Campardella states that she was in the presence of the Gold family on many occasions and that "it was a running conversation' among friends . . . Larry why is your car and Lillian's car parked on the street? His answer was always - That driveway belongs to the Hodges family. I only use my garage for storage.' Joan Hodges always claimed the driveway as her own right." Moreover, Ms. Campardella states that "[i]n my presence, Mr. and Mrs. Gold either individually or jointly always acknowledged that JOAN was the owner of the driveway. Indeed, they used the garage for storage only and always kept their car in front of their house on the street."
Similarly, Madeline Falco, who has known defendant HODGES for at least 25 years, states in her affidavit that no one ever questioned defendant HODGES' absolute right to the driveway during the period of plaintiffs' home construction. Moreover, Ms. Falco states, that in her presence, plaintiffs and their workers requested that defendant pull her car out of the driveway so that building materials could be delivered and defendant HODGES complied either by giving the workers her car keys or moving the car herself.
Plaintiffs, in the instant action, move by order to show cause for a preliminary injunction to enjoin defendant HODGES and any and all people, including her employees, relatives, invitees, guests, friends and acquaintances from parking any vehicle or otherwise placing any vehicle or obstacle in the driveway. Pursuant to CPLR § 6301, a preliminary injunction, "may be granted . . . when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor (Grant Co. v Srogi, 52 NY2d 496, 517 )." (Doe v Axelrod, 73 NY2d 748, 750 ). (See Nobu Next Door, LLC v Fine Arts Housing, Inc., 4 NY3d 839 ; 1650 Realty Associates, LLC v Golden Touch Management, Inc., 101 AD3d 1016, 1017-1018 [2d Dept 2012]; Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 792 [2d Dept 2012]; Perpignan v Persaud, 91 AD3d 622, 622-623 [2d Dept 2012]; Cooper v Board of White Sands Condominium, 89 AD3d 669, 669 [2d Dept 2011]).
In Related Properties, Inc. v Town Bd. of Town/Village of Harrison (22 AD3d 587, 590 [2d Dept 2005]), the Court instructed that:
Since a preliminary injunction prevents litigants from taking actions that they would otherwise be legally entitled to take in advance of an adjudication on the merits, it is considered a drastic remedy which should be issued cautiously (see Uniformed Firefighters Assn. of Greater NY v City of New York, 79 NY2d 236, 241 ; Gagnon Bus Co. Inc. v Vallo Transp. Ltd., 13 AD3d 334 ; Bonnieview Holdings v Allinger, 263 AD2d 933 ). [Emphasis added]
Because injunctive relief is drastic, the Court in Gagnon Bus Co. Inc., at 335, held that the party seeking "a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts upon the moving papers (see William M. Blake Agency, Inc. v Leon, 283 AD2d 423 [2d Dept 2001])." (See Peterson v Corbin, 275 AD2d 35 [2d Dept 2000]; Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 350 [2d Dept 1998]).
An injunction is a provisional remedy to maintain the status quo until a full hearing can be held on the merits of an action. As such "[t]he decision to grant or deny a preliminary injunction rests on the sound discretion of the Supreme Court." (Ruiz v Meloney, 26 AD3d 485 [2d Dept 2006]). (See County of Suffolk v Givens, 106 AD3d 943, 944 [2d Dept 2013]; Arcamone-Makinano v Britton Prop., Inc., 83 AD3d 623, 625 [2d Dept 2011]; Rowland v Dushin, 82 AD3d 738, 739 [2d Dept 2011]).
In applying "the sound discretion of the Supreme Court" in the instant action, the Court finds that plaintiffs the BRAUNSTEINS have not made a prima facie showing sufficient to demonstrate that they will have a likelihood of ultimate success on he merits, will suffer irreparable injury if the preliminary injunction is not issued and a balance of the equities does not move in the favor of plaintiffs the BRAUNSTEINS.
Defendant HODGES, in her opposition to the instant order to show cause, demonstrates that by adverse possession she extinguished the easement for the subject driveway found in the 1961 and 1966 deeds, as well as the 1972 agreement. The Court of Appeals, in Spiegel v Ferraro (73 NY2d 622 ), held, at 625-626:
We have long recognized that an easement created by grant may be extinguished by adverse possession (Woodruff v Paddock, 130 NY 618  [owner of servient parcel extinguished easement by adverse use]; see also, Gerbig v Aumpano, 7 NY2d 327, 330 ; Hennessy v Murdock, 137 NY 317, 326 ; Snell v Levitt, 110 NY 595, 602 ). As with any adverse possession claim, the party seeking to extinguish the easement must establish that the use of the easement has been adverse to the owner of the easement, under a claim of right, open and notorious, exclusive and continuous for a period of 10 years [citations omitted] . . . Thus "an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion for [the prescriptive period]" (Woodruff v Paddock, 130 NY, at 624, supra).
(See Estate of Becker v Murtagh, 19 NY3d 75, 81 ; Walling v Przybylo, 7 NY3d 228 ; Ray v Beacon Hudson Mountain Corp. 88 NY2d 159 ; Koudellou v Sakalis, 29 AD3d 640, 641 ).
"Since the acquisition of title to land by adverse possession is not favored under the law (Belotti v Burkhardt, 228 NY 296, 308 ), these elements [for adverse possession] must be proved by clear and convincing evidence (Van Valkenburgh v Lutz, 304 NY 95, 98 )." (Ray v Beacon Hudson Mountain Corp. at 159). The credible evidence presented by defendant HODGES, including her affidavit and the affidavits of Ms. Campardella and Ms. Falco, establish that defendant HODGES exercised exclusive use over plaintiffs' easement since the Golds owned the neighboring premises and that plaintiffs the BRAUNSTEINS have not used the easement. (See Spiegel v Ferraro at 627-628). In fact, the easement was already extinguished prior to the 2002 purchase of their property by the BRAUNSTEINS from the Golds.
Further, the party claiming adverse possession "is not required to show enmity or specific acts of hostility in order to establish the element of hostility." (Greenberg v Sutter, 257 AD2d 646, 646 [2d Dept 1999]). This element is satisfied where an individual asserts a right to the property that is "adverse to the title owner." (Walling v Przybylo at 232). "The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period." (Monnot v Murphy, 207 NY 240, 245 . It is clear that the Golds acquiesced to defendant HODGES use of the subject driveway for more than the ten (10) year statutory period.
Thus, by clear and convincing credible evidence, defendant HODGES has demonstrated that the written easements of the 1961, 1966 and 1972 documents have been extinguished by virtue of her use of the entire driveway which was adverse to the Golds and then the BRAUNSTEINS, hostile and under a claim of right, open and notorious, exclusive and continuous for the statutory period of 10 years. Therefore, the instant order to show cause is denied.
Accordingly, it is
ORDERED, that the order to show cause by plaintiffs BARRY BRAUNSTEIN and JACQUELINE BRAUNSTEIN for a preliminary injunction, pursuant to CPLR § 6301, to enjoin defendant JOAN HODGES and any and all people, including her employees, relatives, invitees, guests, friends and acquaintances from parking any vehicle or otherwise placing any vehicle or obstacle in the driveway or any portion thereof located partly on the land owned by plaintiffs BARRY BRAUNSTEIN and JACQUELINE BRAUNSTEIN and partly on the land owned by defendant JOAN HODGES is denied in its entirety.
This constitutes the Decision and Order of the Court.