| Crepin v Fogarty |
| 2009 NY Slip Op 01272 [59 AD3d 837] |
| February 19, 2009 |
| Appellate Division, Third Department |
| Joseph G. Crepin et al., Appellants, v William J. Fogarty et al.,Respondents. |
—[*1] Schiller & Knapp, L.L.P., Latham (Jaime B. Thomas of counsel), for respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Lynch, J.), entered November 26,2007 in Rensselaer County, which granted defendants' motion to dismiss the complaint.
Plaintiffs and defendants are disputing neighbors. Plaintiffs commenced this trespass actioncontending in their first and second causes of action that defendants' underground septic systemencroaches upon their property and, in their third and fourth causes of action, that an accesseasement granted in 1985 to defendants over the property now owned by plaintiffs had beenextinguished by adverse possession or abandonment. Defendants made a preanswer motion todismiss pursuant to CPLR 3211 (a) (1) asserting a defense founded upon documentary evidence.Supreme Court granted the motion and plaintiffs now appeal.
In this procedural context, "the court must afford the pleadings a liberal construction, takethe allegations of the complaint as true and provide plaintiff the benefit of every possibleinference" (EBC I, Inc. v Goldman,Sachs & Co., 5 NY3d 11, 19 [2005]). "Whether a plaintiff can ultimately establish itsallegations is not part of the calculus in determining a motion to dismiss" (id.). When themotion to dismiss is premised upon documentary evidence, "such motion may be appropriatelygranted only where the documentary evidence utterly refutes plaintiff's factual allegations,conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]). While factual affidavits submitted by a plaintiff may beconsidered to remedy defects in the complaint (see Leon v Martinez, 84 NY2d [*2]83, 88 [1994]), affidavits submitted by a defendant do notconstitute documentary evidence upon which a proponent of dismissal can rely (see RealtyInvs. of USA v Bhaidaswala, 254 AD2d 603, 604-605 [1998]; Siegel, PracticeCommentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 21-22).
The first and second causes of action involve the underground septic system, whichdefendants asserted had been in place, operational and openly serviced since before theypurchased their lot in 1985. There is no easement in their deed regarding the septic tank andleach fields. They assert a prescriptive easement, but such assertion rests on factual affidavitssubmitted by or on behalf of defendants. While such affidavits might suffice to establish theelements of their defense in a motion for summary judgment, they do not afford a proper basisfor a motion to dismiss based on documentary evidence. Accordingly, dismissal of the first andsecond causes of action must be reversed.
The defense to the third and fourth causes of action is, however, supported by appropriatedocumentary evidence. The specifically described easement on the north boundary of plaintiffs'lot is set forth in defendants' 1985 deed, plaintiffs' 1993 deed provided that they took title subjectto the easement and, significantly, the parties had acknowledged the existence and validity of theaccess easement in a signed document in 2002. These documents were all produced bydefendants, they are proper documents for consideration on a motion to dismiss pursuant toCPLR 3211 (a) (1), and plaintiffs did not challenge the authenticity of any of these documents.We agree with Supreme Court that these documents conclusively established the continuingvalidity of the access easement and, accordingly, the third and fourth causes of action wereproperly dismissed (see Adamkiewicz v Lansing, 288 AD2d 531, 532 [2001]; see also M. Fund, Inc. v Carter, 31AD3d 620, 621 [2006]; Yoshiharu Igarashi v Shohaku Higashi, 289 AD2d 128, 128[2001]).
Cardona, P.J., Peters, Rose and Kane, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted defendants' motion to dismiss thefirst and second causes of action; motion denied to that extent and defendants are directed toserve an answer within 20 days of the date of this Court's decision; and, as so modified, affirmed.