| Meyer v Stout |
| 2007 NY Slip Op 09270 [45 AD3d 1445] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| William T. Meyer, Respondent, v Donald L. Stout,Appellant. |
—[*1] Watson, Bennett, Colligan, Johnson & Schechter, L.L.P., Buffalo (Seth J. Andrews ofcounsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), enteredAugust 2, 2006. The order, insofar as appealed from, denied in part defendant's motion to dismissthe amended complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiff sold a portion of his property, including all the road frontage, todefendant. Although the parcel retained by plaintiff became landlocked, plaintiff reserved aright-of-way across an existing driveway and logging roads in the deed. Defendant thereafterbegan obstructing the right-of-way, however, and plaintiff commenced this action seeking legaland equitable relief. Contrary to the contention of defendant, we conclude that Supreme Courtproperly denied those parts of its motion seeking dismissal of the first, third and fourth causes ofaction pursuant to CPLR 3211 (a) (5) and (7).
With respect to CPLR 3211 (a) (5), we note that defendant, as limited by his brief on appeal,contends only that the fourth cause of action, for a permanent injunction, is time-barred. Wereject that contention. Defendant failed to establish that the action was commenced after theapplicable six-year statute of limitations had expired (see CPLR 213 [1]; see alsoFilby v Brooks, 105 AD2d 826, 828 [1984], affd 66 NY2d 640 [1985]; Rahabi vMorrison, 81 AD2d 434, 439 [1981]).
With respect to CPLR 3211 (a) (7), we note the well-established principle that, indetermining whether to dismiss a complaint for failure to state a cause of action, the court mustaccept all of the allegations in the complaint as true (see Polonetsky v Better HomesDepot, 97 NY2d 46, 54 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The"sole criterion is whether the pleading states a cause of action, and if from its four corners factualallegations are discerned which taken together manifest any cause of action cognizable at law amotion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977];see Leon, 84 NY2d at 87-88). Here, the factual allegations of the amended complaintstate a cause of action for tortious interference with prospective business relations, the first causeof action (cf. Willis Re Inc. vHudson, 29 AD3d 489, 490 [2006]; American Para Professional Sys., Inc. v Hooper Holmes, Inc., 13 AD3d167, 169 [2004]; see generally NBT Bancorp v Fleet/Norstar Fin. Group, 87 NY2d614, 621-624 [1996]).[*2]The factual allegations of the amended complaint alsostate a cause of action for an easement by necessity, the third cause of action. Contrary todefendant's contention, an easement by necessity arises where a parcel of land is divided andeither the land conveyed or the land retained is landlocked (see Carlo v Lushia, 144AD2d 211 [1988]), and the fact that the deed granted an express easement is of no momentwhere, as here, the plaintiff has alleged that the easement that was granted by the deed hasbecome unusable (see MobileMotivations, Inc. v Lenches, 26 AD3d 568, 571 [2006]). Even assuming, arguendo, thatplaintiff was required to bring this action under RPAPL article 15, we conclude that the fact thatthe amended complaint "is not in technical compliance with the requirements of RPAPL 1515 (1)and (2)" is not a fatal defect inasmuch as it sufficiently states a cause of action under that section(De Ruscio v Jackson, 164 AD2d 684, 686 [1991]; see Howard v Murray, 38NY2d 695, 699-700 [1976]; Sunshine v Danbury, 181 AD2d 961, 963 [1992]).
Finally, we conclude that the factual allegations of the amended complaint state a cause ofaction for a permanent injunction, the fourth cause of action (see Data-Track Account Servs.v Lee, 291 AD2d 827 [2002], lv dismissed 98 NY2d 727 [2002], reargdenied 99 NY2d 532 [2002]; cf. McDermott v City of Albany, 309 AD2d 1004, 1005[2003], lv denied 1 NY3d 509 [2004]; McNeary v Niagara Mohawk PowerCorp., 286 AD2d 522, 525 [2001]). Although the court refused to grant plaintiff's priormotion for a preliminary injunction, "[i]t is well settled that the granting or denial of a motion fora preliminary injunction does not constitute the law of the case or an adjudication on the meritsof the claim for a permanent injunction" (Ratner v Fountains Clove Rd. Apts., 118 AD2d843, 843 [1986]). Present—Scudder, P.J., Hurlbutt, Fahey, Green and Pine, JJ.