| Smiley Realty of Brooklyn, LLC v Excello Film Pak, Inc. |
| 2009 NY Slip Op 08604 [67 AD3d 891] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Smiley Realty of Brooklyn, LLC, Respondent, v ExcelloFilm Pak, Inc., Appellant. |
—[*1] Gallo Vitucci & Klar, LLP, New York, N.Y. (Kimberly A. Ricciardi and Yolanda Ayala ofcounsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff has an easement byprescription over certain property owned by the defendant, the defendant appeals, as limited byits brief, from so much of an order of the Supreme Court, Kings County (Knipel, J.), dated May15, 2008, as, in effect, granted that branch of the plaintiff's motion which was for leave to amendits complaint to add a cause of action for a judgment declaring that the plaintiff has an easementby necessity, and denied its cross motion for summary judgment.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the plaintiff's motion which was for leave to amend its complaint to add a cause ofaction for a judgment declaring that the plaintiff has an easement by necessity is denied, thedefendant's cross motion for summary judgment is granted, and the matter is remitted to theSupreme Court, Kings County, for the entry of a judgment declaring that the plaintiff does nothave an easement over the defendant's property.
The plaintiff and the defendant are landowners whose properties in Brooklyn adjoin in partand are separated in part by another property. When the defendant sought to construct a buildingon a previously-unimproved portion of its property, the plaintiff brought this action, inter alia,for a declaration that the plaintiff has an easement by prescription over a portion of the propertyon which the defendant sought to build. Specifically, the plaintiff claimed a right of egress to thestreet through the subject portion of the defendant's property in the event of fire. After discoverywas completed, the plaintiff moved, inter alia, for leave to amend the complaint to add a cause ofaction for a judgment declaring that the plaintiff has an easement by necessity, and the defendantcross-moved, inter alia, for summary judgment. The Supreme Court, inter alia, in effect, grantedthe aforementioned branch of the plaintiff's motion, and it denied the defendant's cross motion.We reverse insofar as appealed from.
The defendant established its prima facie entitlement to judgment as a matter of law. Inparticular, the defendant's proof established that neither the plaintiff nor the plaintiff's tenantsever actually used the defendant's property for egress to the street to escape a fire, or even everconducted drills for [*2]such purpose. The defendant's showingwas sufficient to show, prima facie, that neither the plaintiff nor the plaintiff's tenants everactually used the defendant's property in an open, notorious, and adverse manner (seeMerriam v 352 W. 42nd St. Corp., 14 AD2d 383, 387 [1961]). In opposition, the plaintifffailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]). Accordingly, the Supreme Court should have granted that branch of the defendant'scross motion which was for summary judgment.
"In the absence of prejudice or surprise to the opposing party, leave to amend a pleadingshould be freely granted unless the proposed amendment is palpably insufficient or patentlydevoid of merit" (G.K. Alan Assoc.,Inc. v Lazzari, 44 AD3d 95, 99 [2007], affd 10 NY3d 941 [2008]; see Lucido v Mancuso, 49 AD3d220, 226-227 [2008]). To acquire an easement by necessity, the party asserting the claimmust establish by clear and convincing evidence that there was a unity of title and subsequentseparation of title, and that, at the time of severance, an easement over the servient property wasabsolutely necessary (see Simone vHeidelberg, 9 NY3d 177, 182 [2007]). Here, the plaintiff admitted that there never hadbeen unity of title. Consequently the proposed amendment was patently devoid of merit, and theSupreme Court thus erred by, in effect, granting that branch of the plaintiff's motion which wasfor leave to amend the complaint to add a cause of action for a judgment declaring that theplaintiff has an easement by necessity (see Ross v Gidwani, 47 AD3d 912, 913 [2008]; cf. Prego v Gutchess, 61 AD3d1394, 1395-1396 [2009]; Gjokaj vFox, 25 AD3d 759, 760 [2006]).
Inasmuch as the defendant was entitled to judgment as a matter of law with respect to theplaintiff's cause of action for a prescriptive easement, and the plaintiff was not entitled to amendits complaint to assert a cause of action for an easement by necessity, the plaintiff's cause ofaction sounding in trespass must fail as well. Fisher, J.P., Covello, Angiolillo and Roman, JJ.,concur. [See 19 Misc 3d 1136(A), 2008 NY Slip Op 51020(U).]