| Wild Oaks, LLC v Joseph A. Beehan, Jr. Gen. Contr., Inc. |
| 2010 NY Slip Op 07747 [77 AD3d 924] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Wild Oaks, LLC, Appellant, v Joseph A. Beehan, Jr.General Contracting, Inc., et al., Respondents. |
—[*1] Gilmartin & Bregman, Southampton, N.Y. (Eric Bregman of counsel), forrespondents.
In an action to permanently enjoin the defendants from utilizing a portion of a commondriveway that traverses the plaintiff's property, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Pastoressa, J.), dated August 21, 2009, which denied its motion for apreliminary injunction and granted those branches of the defendants' cross motion which were todismiss the complaint pursuant to CPLR 3211 (a) (1) and, in effect, to cancel a notice ofpendency.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendants' cross motion which were to dismiss the complaint pursuant toCPLR 3211 (a) (1) and, in effect, to cancel a notice of pendency, and substituting therefor aprovision denying those branches of the cross motion; as so modified, the order is affirmed, withcosts to the appellant, and the Suffolk County Clerk is directed to reinstate the notice ofpendency.
In 1981, the defendant Joseph A. Beehan, Jr., subdivided certain real property he owned inSouthampton, and in 1982, he sold one lot (hereinafter Lot 2) to Nathan Howard. In their contractof sale, Beehan reserved a right to reacquire a 25-foot strip of land on Lot 2, represented by ashaded area on the subdivision map (hereinafter the shaded area), in the event that he acquired alandlocked parcel to the east of Lot 2 which became known as Lot 3. The contract provided that,in such event, Howard and any subsequent owner of Lot 2 would retain an easement over theshaded area, and Beehan and any subsequent owner of Lot 3 would have an easement over a25-foot strip of land on Lot 2 which lay immediately south of the shaded area. The purpose of thereciprocal easements was for the owners of Lots 2 and 3 to share a common driveway to theirrespective residences.
On February 24, 1983, Howard and Beehan executed a declaration which was recorded withthe Suffolk County Clerk providing, inter alia, that the shaded area and the contiguous 25-footstrip "shall not be made available or be used as a right-of-way for access to any Lot, plot, piece orparcel of land other than parcels 2 and 3, unless such right-of-way is approved by the PlanningBoard of the Town of Southampton, or its successors." Beehan acquired Lot 3, Howardreconveyed the shaded area to Beehan, and the shaded area was merged with Lot 3 to form aflagpole lot. Thereafter, Lots 2 and 3 used the common driveway comprised of the shaded areaand the contiguous 25-foot strip for street access.[*2]
On July 30, 1997, the defendant Joseph A. Beehan, Jr.General Contracting, Inc. (hereinafter Beehan Contracting), purchased Lot 4, which was alandlocked parcel to the east of Lot 3. In 1998, Beehan Contracting applied to the Planning Boardfor, inter alia, permission to use the common driveway of Lots 2 and 3 for the purpose ofobtaining access to Lot 4. The Planning Board conditioned approval of the application upon"submission of a common driveway easement in a form acceptable to the Town Attorney," andthe applicant's satisfactory completion of improvements to the driveway recommended by theDirector of Engineering. Thereafter, Beehan and Beehan Contracting entered into an easementagreement permitting Lot 4 to use the shaded area and other areas on Lot 3. The defendants didnot obtain an easement from the owner of Lot 2 to use the 25-foot strip on Lot 2. The Director ofEngineering subsequently conducted an inspection and wrote to the Planning Board,recommending engineering approval of the common driveway plan for Lot 4.
In 2006, the plaintiff, Wild Oaks, LLC, purchased Lot 2. In 2009, the plaintiff commencedthe instant action to permanently enjoin the defendants from utilizing the portion of the commondriveway on Lot 2, alleging that the defendants were in violation of the restrictions in thedeclaration and were trespassing on its property. The plaintiff moved for a preliminary injunctionand the defendants cross-moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7),and, in effect, to cancel a notice of pendency. The Supreme Court denied the plaintiff's motionfor a preliminary injunction, and granted those branches of the defendants' cross motion whichwere to dismiss the complaint pursuant to CPLR 3211 (a) (1) and, in effect, to cancel the noticeof pendency. We modify.
"A motion to dismiss a complaint based on documentary evidence 'may be appropriatelygranted only where the documentary evidence utterly refutes plaintiff's factual allegations,conclusively establishing a defense as a matter of law' " (Stein v Garfield Regency Condominium, 65 AD3d 1126, 1128[2009], quoting Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002];see CPLR 3211 [a] [1]). Here, the defendants relied upon, inter alia, subdivision maps,the 1982 contract of sale between Howard and Beehan, the declaration, and the Planning Boardconditional approval of the use of the common driveway by Lot 4. Contrary to the SupremeCourt's determination, these documents did not utterly refute the plaintiff's allegations that theowner of Lot 4 had failed to restrict its use to the shaded area on Lot 3 and was not givenpermission by easement or otherwise to use any portion of Lot 2. Accordingly, the defendantsfailed to establish a defense as a matter of law, and that branch of their cross motion which wasto dismiss the complaint pursuant to CPLR 3211 (a) (1) should have been denied (see Stein v Garfield RegencyCondominium, 65 AD3d 1126, 1128 [2009]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker,LLP, 38 AD3d 34, 37 [2006]). Further, although the Supreme Court did not reach thatbranch of the defendants' cross motion which was to dismiss the complaint pursuant to CPLR3211 (a) (7), in the interest of judicial economy (see Mobil Oil Corp. v Christian Oil & GasDistribs., 95 AD2d 772, 773 [1983]), we find that the plaintiff adequately pleaded a cause ofaction, and thus, the defendants failed to show their entitlement to dismissal of the complaintpursuant to CPLR 3211 (a) (7) (see Leon v Martinez, 84 NY2d 83, 88 [1994];Corsello v Verizon N.Y., Inc., 77 AD3d 344, 360 [2d Dept 2010]).
However, the Supreme Court properly denied the plaintiff's motion for a preliminaryinjunction. On the record presented, the plaintiff failed to show irreparable injury in the absenceof an injunction and a balance of equities in its favor (see CPLR 6301; Aetna Ins. Co.v Capasso, 75 NY2d 860, 862 [1990]; Board of Mgrs. of Wharfside Condominium v Nehrich, 73 AD3d822, 824 [2010]).
The plaintiff's remaining contentions either are without merit or need not be reached in lightof our determination. Rivera, J.P., Angiolillo, Chambers and Austin, JJ., concur.