| Sachar v East 53 Realty, LLC |
| 2009 NY Slip Op 04409 [63 AD3d 715] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Eddie Sachar, Respondent, v East 53 Realty, LLC,Appellant. |
—[*1] Stein, Weiner & Roth, LLP, Carle Place, N.Y. (Gerald Roth of counsel), forrespondent.
In an action pursuant to RPAPL article 15 to determine claims to real property, the defendantappeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated April 13, 2007,which granted the plaintiff's motion for summary judgment.
Ordered that the order is affirmed, with costs.
"[A] grantor cannot create an easement benefitting land not owned by the grantor" at thetime of the grant (Beachside Bungalow Preserv. Assn. of Far Rockaway v OceanviewAssoc., 301 AD2d 488, 489 [2003]; see Matter of Estate of Thomson v Wade, 69NY2d 570, 573-574 [1987]; Tuscarora Club of Millbrook, N.Y. v Brown, 215 NY 543[1915]; Lechtenstein v P.E.F. Enters., 189 AD2d 858, 859 [1993]; cf. Sam Dev. vDean, 292 AD2d 585, 585-586 [2002]).
The plaintiff made a prima facie showing of his entitlement to judgment as a matter of law(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]) by submitting documents establishing that, at the time theeasement was purportedly created, the grantor owned the servient property, but not the dominantproperty. Accordingly, the plaintiff established, as a matter of law, that no valid easement wasever reserved (see Matter of Estate of Thomson v Wade, 69 NY2d at 573; TuscaroraClub of Millbrook, N.Y. v Brown, 215 NY 543 [1915]; Beachside Bungalow Preserv.Assn. of Far Rockaway v Oceanview Assoc, 301 AD2d at 489; cf. Lechtenstein v P.E.F.[*2]Enters., 189 AD2d at 859).
In opposition, the defendant's attorney argued that the owners of the two properties at thetime of the purported reservation of the easement in 1936 were, in effect, the same because theyappeared to share the same corporate principals. However, these conclusory statements wereunsupported by any documentary evidence, and therefore were insufficient to defeat theplaintiff's summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d at 324;Zuckerman v City of New York, 49 NY2d at 562). Accordingly, the Supreme Courtproperly granted the plaintiff's motion for summary judgment. Santucci, J.P., Angiolillo, Belenand Chambers, JJ., concur.