As seen in the New York Law Journal
Upon the efiled documents numbered 37-50; 52-55; and 58, it is ORDERED that plaintiff PGA Capital LLC’s motion for an order pursuant to CPLR §3212 granting summary judgment pursuant to RPAPL 1501(1), canceling and discharging the easement and declaring that plaintiff holds legal title in fee simple absolute to 3485 Main Bayview Road, Southold, Suffolk County, New York free and clear from any easement, and declaring that defendants, and all persons or entities claiming under and/or acting in concert with defendants, are forever barred and precluded from asserting any claims to an easement in 3485 Main Bayview Road, Southold, Suffolk County, New York is granted; and it is further
ORDERED that Clerk of the County of Suffolk is directed, upon the payment of the proper fees, if any, to cancel, discharge and remove the easement filed in the office of the Clerk of the County of Suffolk as against 3485 Main Bayview Road, Southold, Suffolk County, New York; and it is further
ORDERED that plaintiff PGA Capital LLC’s motion pursuant to CPLR §3212 for a permanent injunction precluding defendants from asserting rights and interests in an easement in 3485 Main Bayview Road, Southold, Suffolk County, New York, is granted; and it is further
ORDERED that plaintiff PGA Capital LLC’s motion for an order pursuant to CPLR §3212 granting summary judgment dismissing defendants’ affirmative defenses and counterclaim is granted.
This is an action pursuant to article 15 of the Real Property Actions and Proceedings Law for the cancellation of an easement, and permanent injunction, barring claims to an easement on real property known as 3485 Main Bayview Road, Southold, Suffolk County, New York (“Lot 15.2″). Plaintiff PGA Capital LLC is the owner Lot 15.2, which is an improved waterfront lot that borders a canal with access to Goose Creek (“Lot 15.2″). Defendants Robert D. Toman and Susan Toman are the owners of 3795 Main Bayview Road, Southold, Suffolk County, New York (“Lot 13″). Defendants claim right to an easement over Lot 15.2.
Prior to plaintiff’s purchase of Lot 15.2, both properties were owned by defendants: Lot 13 was purchased by defendants in January 2005, and Lot 15.2 was purchased in August 2005. In February 2009, while defendants were the sole owners of both Lot 15.2 and Lot 13, defendants purported to grant themselves an easement over Lot 15.2 to allow access the canal. Years later a foreclosure action was commenced in this Court related to defendants’ failure to make mortgage payments on Lot 15.2, which resulted in the Court granting judgment of foreclosure and sale by order dated February 27, 2018 (Heckman, J.) (see Deutsche Bank v. Toman, et al., Index No. 17760/2013). As a result of the foreclosure plaintiff purchased Lot 15.2 from the foreclosing bank and was in contract to re-sell Lot 15.2 when the purchaser canceled the contract as a result of defendants’ claim to an easement on the property.
The within action was commenced by filing a summons and complaint on December 14, 2020. The complaint consists of two causes of action, the first to quiet title and seeking a declaratory judgment, the second cause of action for a permanent injunction precluding defendants from asserting any rights and interests in the alleged easement. Plaintiff’s then moved by order to show cause signed December 23, 2020 (Baisley, J.) for preliminary injunction (#001). Defendants appeared on February 26, 2021 by filing their verified answer consisting of general denials, six affirmative defenses that include failure to state a cause of action, and unclean hands, as well as a counter-claim for unjust enrichment. By letter dated March 11, 2021 plaintiff withdrew its order to show cause.
Plaintiff now moves for summary judgment on its RPAPL 1501(1) claim and for permanent injunction (#002). Plaintiff seeks a determination canceling and discharging defendants’ alleged easement and a declaration that plaintiff holds title in fee simple absolute to Lot 15.2 free and clear from any easement of defendants. Plaintiff argues the easement is invalid because defendants could not have an easement in their own property. In addition plaintiff seeks an Order directing the Clerk of the County of Suffolk to cancel, discharge and remove the easement filed against Lot 15.2, and a permanent injunction precluding defendants from asserting rights and interests in the alleged easement, as well as dismissal of defendants’ affirmative defenses and counterclaim. In support plaintiff submits the pleadings, legal descriptions of Lot 15.2 and Lot 13, the alleged easement, and the affidavit of Keith Angerame, Esq., a member of plaintiff.
In opposition defendants do not dispute that they were owners of both Lot 15.2 and Lot 13 at the time they executed the alleged easement in 2009, and fail to rebut the argument that as owners of both lots defendants could not effectuate a valid easement to themselves. Instead defendants argue among other things that questions of fact, and the doctrine of caveat emptor, preclude summary judgment. Defendants submit the affidavit of defendant Susan A. Toman in opposition to the motion.
Ms. Toman states that Lot 15.2 has direct access to the canal and it was defendants intention to install a dock and related marine structures and eventually sell Lot 15.2. Ms. Toman further states that, as set forth in the easement, she and her husband and any subsequent owners of Lots 13 and 15.2 would share the costs of maintenance and upkeep for the dock, that they received approval for the dock in 2009 and recorded the easement that same year, and that defendants relied upon their attorney and the approvals of the Town of Southold and DEC to construct the dock and record the easement “as valid means to access the canal in the future once we were no longer owners of Lot 15.2.”
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 ; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 ). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions and unsubstantiated allegations are insufficient to raise a triable issue of fact (CPLR 3212 [b]; Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 ).
It is well settled that a person cannot have an easement in his or her own land, since all of the uses of an easement are fully comprehended in his or her general rights of ownership (Will v. Gates, 89 NY2d 778, 658 NYS2d 900 ; Parsons v. Johnson, 68 NY 62 ; Town of Pound Ridge v. Golenbock, 264 AD2d 773, 773-74, 695 NYS2d 388, 389 [2d Dept 1999]). Thus the owner of a fee cannot create an easement in his or her own favor to exist during the time he or she is vested with the fee (see Beekwill Realty Corp. v. City of New York, 254 NY 423 ; New York City Council v. City of New York, 4 AD3d 85, 770 NYS2d 346 [1st Dept 2004]).
Plaintiff established a prima facie case of entitlement to summary judgment in its favor by demonstrating that at the time defendants granted themselves an easement in Lot 15.2 for the benefit of Lot 13, they were owners of both lots. In opposition defendants failed to raise a triable issue of fact. Here defendants admit to owning Lot 15.2 since August 2005, and admit that since January 2005 they also owned Lot 13 (Complaint at5, 7; Answer1).
Further, defendants submit the affidavit of Ms. Toman who does not refute owning both parcels at the time they recorded the easement in 2009. Further, the arguments by defendants’ counsel that there are questions of fact regarding plaintiffs acquisition of Lot 15.2, as well as the cancellation of plaintiffs contract to resell Lot 15.2, and that these questions preclude summary judgment, are unpersuasive in this action which is to quiet title to the premises and for permanent injunction. Moreover, the arguments of counsel, who has no personal knowledge of the operative facts, are without probative value and insufficient to defeat a motion for summary judgment (see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 ; Rivers v. Birnbaum, 102 AD3d 26, 953 NYS2d 232 [2d Dept 2012]). Defendants’ attempt to distinguish the holding in Town of Pound Ridge v. Golenbock, supra, by suggesting that the facts in Golenbock are dissimilar from the facts herein, is unpersuasive. First, defendants fail to establish conclusively that the facts are indeed dissimilar and second, defendants fail to establish what legal bearing the different facts, if established, would have on the present case. Finally, defendants’ argument that the doctrine of caveat emptor precludes summary judgment is without merit. In support of its argument defendant cites Malos v. Crimmins,40 AD3d 1053, 1054, 837 NYS2d 234 (2d Dept 2007) which is clearly inapplicable to the present action. Matos was an action brought by the purchasers of a home against the sellers for fraud, due to the sellers failure to disclose a conservation easement. The present case does not involve an action by purchasers against the sellers, nor does it involve allegations that defendants failed to disclose the easement. Plaintiff here seeks to quiet title to the premises, and declare the easement invalid, and the doctrine of caveat emptor is inapplicable.
Based on the foregoing the Court declares that defendants do not have an easement in 3485 Main Bayview Road, Southold, Suffolk County, New York (Lot 15.2).
That part of plaintiff’s motion for a permanent injunction precluding defendants from asserting rights and interests in the alleged easement is also granted. As discussed, defendants do not have a valid easement for authority to traverse plaintiff’s property for access to the canal. Defendants continued insistence in asserting a property right over plaintiff’s property, a right that they do not have, shows that plaintiff will suffer irreparable harm if defendants are not enjoined from pursuing the improper easement (Long is. Gynecological Services, P.C. v. Murphy, 298 AD2d 504, 504, 748 NYS2d 776 [2d Dept 2002] [“The threat of continuing trespass entitles a property owner to injunctive relief where irreparable injury may result.”]). Moreover the affidavit of Keith Angerame, Esq., a member of plaintiff, has established that the potential purchaser of the premises refused to proceed to closing until the easement was extinguished. Defendants vague and conclusory assertions failed to refute the irreparable harm established by plaintiffs.
The Court turns next to that part of plaintiff’s motion for summary judgment dismissing defendants’ affirmative defenses. Affirmative defenses plead as conclusions of law that are unsupported by the facts in the record are insufficient and should be dismissed (CPLR §3013; Cohen Fashion Optical Inc. v. V&M Optical Inc., 51 AD3d 619, 858 NYS2d 260 [2d Dept 2008]; see also Bechar v. Feeler, 64 AD3d 672, 84 NYS2d 883 [2d Dept 2009]). In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference. If there is any doubt as to the availability of a defense, it should not be dismissed (Fireman’s Fund Ins. Co. v. Farrell, 57 AD3d 721, 723, 869 NYS2d 597 [2d Dept 2008]). Applying the foregoing principles, and giving defendants the benefit of every reasonable inference, the Court finds that defendants six affirmative defenses are legal conclusions without sufficient factual allegations. Accordingly defendants’ affirmative defenses asserted in their answer are dismissed.
That party of plaintiff s motion to dismiss defendant’s counterclaim for unjust enrichment is granted. To recover for unjust enrichment a party must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182, 919 NYS2d 465  [citation omitted]; J.P. Plumbing Corp. v. Born to Build Constr. Corp., 137 AD3d at 977, 27 NYS3d 203 [2d Dept 2016]). “Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated” (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d at 182, citing Sperry v. Crompton Corp., 8 NY3d 204, 215, 831 NYS2d 760 ; see J.P. Plumbing Corp. v. Born to Build Constr. Corp., 137 AD3d at 977, 27 NYS3d 203). Here defendants seek to recover from plaintiff on a claim of unjust enrichment for the maintenance and construction of a dock on Lot 15.2 in 2009, on property which plaintiff purchased from the foreclosing bank, not from defendants. As the pleadings fail to indicate a relationship that could have caused reliance or inducement on defendants’ part, defendants’ counterclaim for unjust enrichment is dismissed (Mandarin Trading Ltd. v. Wildenstein, 16 NY3d at 182).
Accordingly, plaintiff’s motion is granted.