| DeMato v Mallin |
| 2009 NY Slip Op 08991 [68 AD3d 711] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Daniel G. DeMato et al., Respondents, v Barry Mallin etal., Appellants. |
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In an action, inter alia, pursuant to RPAPL 871 for the removal of encroaching structuresupon real property, the defendants appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Suffolk County (Weber, J.), dated September 9, 2008, as granted theplaintiffs' motion for leave to amend their complaint to include a cause of action for a judgmentdeclaring that a certificate of abandonment filed on September 26, 2000 in the office of theSuffolk County Clerk regarding Bayberry Road in the Town of Southold is invalid, and directedthat the Town of Southold be joined as a party defendant.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties are all homeowners residing in a subdivision in the Town of Southold. Thesubdivision map, which was filed in 1922, contains a so-called "paper" street, known asBayberry Road, which is located on property now owned by the defendants. In August 2000 thedefendants applied to the town tax assessor for a certificate of abandonment (hereinafter thecertificate) pursuant to Real Property Law § 335 (3). This section permits theabandonment of a subdivision or portion thereof, such as a "paper" street, "without [the]consent" of other landowners in the subdivision, provided that 20 years or more have elapsedsince the subdivision map was filed, the road has not been opened, is not a public highway, is notused by the public, and is not necessary for the use of owners within the subdivision. OnSeptember 14, 2000 the town tax assessor issued the certificate, which "de-mapped" BayberryRoad.
In 2001 the plaintiffs commenced this action seeking, inter alia, to assert their rights to aneasement over Bayberry Road. The defendants interposed an answer wherein they alleged,among other things, that the certificate extinguished the purported roadway and any impliedeasements thereover. In a reply to the counterclaims contained in the answer, dated October 15,2001, the plaintiffs asserted, inter alia, an affirmative defense that "[d]efendants have failed tocomply with the requirements of Real Property Law § 335."
In 2008 the defendants moved for summary judgment based upon the certificate. Theplaintiffs cross-moved for leave to amend their complaint to assert a cause of action for ajudgment [*2]declaring that the certificate is invalid, contendingthat the certificate had been obtained in violation of Real Property Law § 335 inasmuch asBayberry Road was used by the plaintiffs and other members of the subdivision. The defendantscontended, among other things, that such a cause of action was time-barred. The Supreme Courtdenied the defendants' motion for summary judgment and granted the cross motion for leave toamend the complaint. The court also directed that the Town be joined as a party. We affirm theorder insofar as appealed from.
Under the circumstances of this case, the Supreme Court properly directed that the Town bejoined as a defendant in order to accord complete relief between the parties (see CPLR1001 [a], [b]; Matter of Lazzari v Townof Eastchester, 62 AD3d 1002 [2009]; see also Matter of Lezette v Board of Educ.,Hudson City School Dist., 35 NY2d 272, 282 [1974]). The court also properly exercised itsdiscretion in granting the plaintiffs leave to amend their complaint. Leave to amend a complaintshall be freely given (see CPLR 3025 [b]), and the decision as to whether to grant suchleave is generally left to the sound discretion of the trial court (see Edenwald Contr. Co. vCity of New York, 60 NY2d 957, 959 [1983]). Moreover, the newly-asserted cause of actionwas not "palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220, 222 [2008]; see Trataros Constr., Inc. v New York CityHous. Auth., 34 AD3d 451 [2006]).
The defendants' remaining contentions are without merit. Mastro, J.P., Santucci, Belen andChambers, JJ., concur.