| Chanos v MADAC, LLC |
| 2010 NY Slip Op 05350 [74 AD3d 1007] |
| June 15, 2010 |
| Appellate Division, Second Department |
| James Chanos et al., Appellants, v MADAC, LLC, et al.,Respondents, et al., Defendant. |
—[*1] Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, N.Y. (ChristopherKelley of counsel), for respondents MADAC, LLC, DS2, LLC, and Marc Spilker. Farrell Fritz, P.C., Uniondale, N.Y. (Bruce N. Roberts of counsel), for respondent Ninety SixFurther Lane, Inc. (no brief filed).
In an action for injunctive and declaratory relief relating to an easement, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County(Spinner, J.), dated May 22, 2009, as, upon denying, in effect, as academic, the separate motionsof the defendants MADAC, LLC, DS2, LLC, and Marc Spilker, and the defendant Ninety SixFurther Lane, Inc., for summary judgment, sua sponte directed dismissal of the complaint forlack of a justiciable controversy.
Ordered that on the Court's own motion, the notice of appeal is deemed to be an applicationfor leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof denying, ineffect, as academic, those branches of the respondents' motions which were for summaryjudgment dismissing the first cause of action and directing dismissal of the first cause of actionfor a declaratory judgment; as so modified, the order is affirmed insofar as appealed from, withcosts to the plaintiffs, and the matter is remitted to the Supreme Court, Suffolk County, for adetermination on the merits of those branches of the respondents' motions which were forsummary judgment on the first cause of action for a declaratory judgment.
The defendants have a right-of-way easement over a 15-foot wide strip of land on theplaintiffs' property, located in the Village of East Hampton. The easement was created to providea means of ingress and egress for the defendants to access the beach. The defendant Marc Spilker[*2]complained to the plaintiffs that their shrubbery intrudedupon his right-of-way. When the plaintiffs failed to respond to Spilker's satisfaction, he beganremoving the hedges along the path.
The plaintiffs commenced this action against Spilker and Spilker's entities, MADAC, LLC,and DS2, LLC (hereinafter collectively Spilker), seeking a declaratory judgment and aninjunction enjoining Spilker from removing their hedges. The Supreme Court granted, and thenimmediately vacated, a temporary restraining order. Spilker widened the path and landscaped it.The plaintiffs filed an amended complaint, also naming as defendants David Walsh and NinetySix Further Lane, Inc. (hereinafter Further Lane), the other two landowners who have aneasement over the plaintiffs' property.
Spilker and Further Lane separately moved for summary judgment. The Supreme Courtdenied, in effect, as academic, their motions and, sua sponte, directed dismissal of the complainton the grounds that, since the work on the path was completed, and the defendants were notseeking to expand the path to the full 15 feet, there was no justiciable controversy.
Pursuant to CPLR 3001, "[t]he supreme court may render a declaratory judgment. . . as to the rights and other legal relations of the parties to a justiciablecontroversy." To constitute a "justiciable controversy," there must be a real dispute betweenadverse parties, involving substantial legal interests for which a declaration of rights will havesome practical effect (see Downe v Rothman, 215 AD2d 716 [1995]; De Veau vBraisted, 5 AD2d 603 [1958], affd 5 NY2d 236 [1959], affd 363 US 144[1960]; Playtogs Factory Outlet v County of Orange, 51 AD2d 772 [1976]). Acontroversy is said to exist where the plaintiff asserts rights which are actually challenged by thedefendant (see DeVeau v Braisted, 5 AD2d at 603). The primary purpose of adeclaratory judgment is to stabilize an uncertain or disputed jural relationship with respect topresent or prospective obligations (see Goodman v Reisch, 220 AD2d 383 [1995]).
Here, the plaintiffs alleged that the defendants' right-of-way should be a path which is nomore than four feet wide, while the defendants alleged that their easement extended over theentire 15-foot strip of land set forth in the deeds which established the easement. Consequently, ajusticiable controversy exists as to the plaintiffs' first cause of action for a declaratory judgment.However, with respect to the plaintiffs' second cause of action for an injunction to prohibit thedefendants from removing shrubs and hedges, the Supreme Court correctly determined that it hasbeen rendered academic, since the hedges have been removed and replanted. Accordingly, thesecond cause of action was properly dismissed. Mastro, J.P., Santucci, Chambers and Roman,JJ., concur.