| Triangle Props. # 2, LLC v Narang |
| 2010 NY Slip Op 04367 [73 AD3d 1030] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Triangle Properties # 2, LLC, Appellant, v Ranju Narang,Respondent. |
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In an action, inter alia, for a judgment declaring that the plaintiff has a prescriptive easementover a certain portion of the defendant's real property, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Weber, J.), dated October 27, 2008, which denied its motionpursuant to CPLR 3215 for leave to enter judgment against the defendant upon the defendant'sdefault in answering the complaint.
Ordered that the order is reversed, on the law, on the facts, and in the exercise of discretion,with costs, the plaintiff's motion pursuant to CPLR 3215 for leave to enter judgment against thedefendant upon the defendant's default in answering the complaint is granted, and the matter isremitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that theplaintiff has a prescriptive easement over that portion of the defendant's property referred to bythe parties as the curb cut strip which adjoins a portion of the plaintiff's eastern boundary.
Since July 1980, the plaintiff has been the owner of real property located at 1270-1280Sunrise Highway in Copiague. The property is improved by a commercial building and housestwo commercial tenants. The defendant is the owner of real property located at 1300 SunriseHighway which is contiguous to the eastern boundary of the plaintiff's property. At thesouthwest corner of the defendant's property is a paved strip of land, including a curb cut, whichadjoins a portion of the plaintiff's property (hereinafter the curb cut strip).
In or about December 2006, the defendant received municipal approval to install, inter alia,an oval curb, a planting area, and three parking spaces in or around the curb cut strip. After theinstallation began, the oval curb was installed, which partially obstructs ingress and egress overthe curb cut strip between the plaintiff's property and Sunrise Highway. According to theplaintiff, the completed project will entirely obstruct ingress and egress between its property andSunrise Highway.
In July 2007 the plaintiff commenced this action for declaratory and injunctive reliefalleging, inter alia, that it had a prescriptive easement over the curb cut strip. Specifically, theplaintiff alleges that it, its predecessors, and their tenants have used the curb cut strip as part ofthe driveway located between the plaintiff's property and the defendant's property for the purposeof ingress and egress of motor vehicles. [*2]The plaintiff furtheralleges that this use has been continuous, open, notorious, adverse, hostile, and under claim ofright for more than 10 years. By order to show cause dated July 9, 2007, the plaintiff also movedfor a preliminary injunction. The Supreme Court temporarily enjoined the defendant fromobstructing or blocking the curb cut strip or interfering with the plaintiff's full use of it until thereturn date. The parties thereafter resolved the order to show cause by stipulating, inter alia, thatpending final judgment, the plaintiff's use of the curb cut strip for ingress and egress would notbe obstructed or impaired.
Beginning in December 2007, the attorneys for both sides communicated with each other,apparently in an effort to amicably resolve the matter. As a result, the plaintiff's attorneysgranted multiple requests from the defendant's attorneys for extensions of time to serve theanswer. The final extension gave the defendant until June 16, 2008, to answer. When no answerwas forthcoming, the plaintiff moved pursuant to CPLR 3215 for leave to enter judgment againstthe defendant. The defendant's opposition papers consisted of the affirmation of counsel basedupon information and belief, and an unverified proposed answer. In the order appealed from, theSupreme Court denied the plaintiff's motion. We reverse.
On a motion for leave to enter judgment against a defendant for the failure to answer orappear, a plaintiff must submit proof of service of the summons and complaint, proof of the factsconstituting its claim, and proof of the defendant's default (see Mercury Cas. Co. v Surgical Ctr. at Milburn, LLC, 65 AD3d1102 [2009]; Matone v SycamoreRealty Corp., 50 AD3d 978 [2008]). A verified complaint may be used as the affidavitof the facts constituting the claim (see CPLR 3215[f]; Woodson v Mendon LeasingCorp., 100 NY2d 62, 70 [2003]), but it must allege "enough facts to enable a court todetermine that a viable cause of action exists" (id. at 71; see Neuman v Zurich N. Am., 36AD3d 601, 602 [2007]). Moreover, the verified complaint must contain evidentiary factsfrom one with personal knowledge since a pleading verified by an attorney pursuant to CPLR3020 (d) (3) is insufficient to establish its merits (see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353,356 [2005]; Saks v New York City Health & Hosps. Corp., 302 AD2d 213 [2003]; cf. New S. Ins. Co. v Dobbins, 71AD3d 652 [2010]). Where a plaintiff succeeds in establishing that a defendant is in default,the defendant must come forward with a reasonable excuse for the default and must demonstratea meritorious defense to the action to avoid the entry of a default judgment (see Baldwin v Mateogarcia, 57 AD3d594 [2008]; Grinage v City of NewYork, 45 AD3d 729, 730 [2007]; Ennis v Lema, 305 AD2d 632, 633 [2003]).
Here, the plaintiff established that the defendant was in default in answering. In support ofits motion, it submitted, inter alia, the complaint, which was verified on personal knowledge bythe plaintiff's vice-president of asset management, proof of service, and the severalcorrespondences between counsel evidencing the multiple extensions of time to answer affordedto the defendant. The complaint alleged in detail the plaintiff's longtime ownership of itsproperty, the defendant's ownership of the adjoining property, and the continuous, open,notorious, adverse, and hostile use of the curb cut strip for more than 10 years by the plaintiff, itstenants, and predecessors. As such, it contained enough facts to enable the Supreme Court todetermine that a viable cause of action for a prescriptive easement existed (see Walsh v Ellis, 64 AD3d 702,705 [2009]; 315 Main St. Poughkeepsie,LLC v WA 319 Main, LLC, 62 AD3d 690, 691 [2009]; see generally Woodson vMendon Leasing Corp., 100 NY2d at 71). In response, the defendant failed to demonstrate areasonable excuse for the default and a meritorious defense. Accordingly, the Supreme Courtshould have granted the plaintiff's motion for leave to enter judgment against the defendant uponher default in answering (see Zino vJoab Taxi, Inc., 20 AD3d 521, 522 [2005]; Juseinoski v Bd. of Educ. of the City ofNew York, 15 AD3d at 356-357; cf. Matone v Sycamore Realty Corp., 50 AD3d 978 [2008]).
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Suffolk County, for the entry of an appropriate judgment declaring that theplaintiff has a prescriptive easement over that portion of the defendant's property referred to bythe parties as the curb cut strip which adjoins a portion of the plaintiff's eastern boundary (see315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d at 691). Fisher, J.P.,Dillon, Dickerson and Eng, JJ., concur.