| Wernicki v Knipper |
| 2014 NY Slip Op 05324 [119 AD3d 775] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Marie G. Wernicki, Appellant, v DennisKnipper et al., Respondents. |
Joseph A. Solow, Hauppauge, N.Y., for appellant.
Ciarelli & Dempsey, P.C., Riverhead, N.Y. (John Ciarelli of counsel), forrespondents.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certainreal property, and for declaratory and injunctive relief, the plaintiff appeals, as limited byher brief, from so much of an order of the Supreme Court, Suffolk County (Jones, Jr., J.),dated August 9, 2013, as, upon reargument, adhered to the original determination in anorder of the same court dated January 25, 2013, denying, as untimely, her cross motionfor summary judgment declaring that her real property is benefitted by a recordedeasement over a certain portion of the defendants' real property, permanently enjoiningthe defendants from interfering with the plaintiff's use of the easement, and dismissingthe defendants' counterclaim.
Ordered that the order dated August 9, 2013, is reversed insofar as appealed from, onthe law, on the facts, and in the exercise of discretion, with costs, upon reargument, thedetermination in the order dated January 25, 2013, denying, as untimely, the plaintiff'scross motion for summary judgment declaring that her real property is benefitted by arecorded easement over the subject portion of the defendants' real property, permanentlyenjoining the defendants from interfering with the plaintiff's use of the easement, anddismissing the defendants' counterclaim is vacated, the plaintiff's cross motion forsummary judgment is thereupon granted, and the matter is remitted to the SupremeCourt, Suffolk County, for the entry of a judgment, inter alia, declaring that the plaintiff'sreal property is benefitted by a recorded easement over the subject portion of thedefendants' real property, permanently enjoining the defendants from interfering with theplaintiff's use of the easement, and dismissing the defendants' counterclaim.
The Supreme Court improvidently exercised its discretion in denying, as untimely,the plaintiff's cross motion for summary judgment. While the cross motion was mademore than 120 days after the note of issue was filed and, therefore, was facially untimely(see Brill v City of NewYork, 2 NY3d 648 [2004]), an untimely cross motion for summary judgmentmay be considered by the court where, as here, a timely motion for summary judgmentwas made on nearly identical grounds (see Homeland Ins. Co. of N.Y. v National Grange Mut. Ins. Co.,84 AD3d 737, 738-739 [2011]; Whitehead v City of New York, 79 AD3d 858, 860 [2010];Grande v Peteroy, 39 AD3d590, 591-592 [2007]). "In such circumstances, the issues raised by the untimelycross motion are already properly before the motion court and, thus, the nearly identicalnature of the grounds may provide the requisite good cause (see CPLR 3212 [a])to review the merits of the untimely cross motion. Notably, a court, in deciding the [*2]timely motion, may search the record and award summaryjudgment to a nonmoving party" (Homeland Ins. Co. of N.Y. v National Grange Mut.Ins. Co., 84 AD3d at 738-739 [citation omitted]; see CPLR 3212 [b]).Therefore, the Supreme Court should have entertained the plaintiff's cross motion forsummary judgment.
In the interest of judicial economy, we deem it appropriate, under the circumstancesof this case, to address the plaintiff's cross motion on the merits, rather than to remit thematter to the Supreme Court, Suffolk County, to do so (see Nisimova v StarbucksCorp., 108 AD3d 513, 514 [2013]). The plaintiff established her prima facieentitlement to judgment as a matter of law by submitting, inter alia, the relevant deedsdemonstrating that she was granted an express easement in a fixed location over thesubject portion of the defendants' real property, set forth in metes and bounds (see Marsh v Hogan, 56 AD3d1090, 1092 [2008]; Rozek v Kuplins, 266 AD2d 445, 446 [1999]; cf.Lewis v Young, 92 NY2d 443 [1998]). In opposition, the defendants failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Accordingly, the Supreme Court should have granted the plaintiff's cross motion forsummary judgment declaring that her property is benefitted by a recorded easement overthe subject portion of the defendants' property, permanently enjoining the defendantsfrom interfering with her use of the easement, and dismissing the defendants' relatedcounterclaim.
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Suffolk County, for the entry of a judgment, inter alia, declaring that theplaintiff's property is benefitted by a recorded easement over the subject portion of thedefendants' real property (see Lanza v Wagner, 11 NY2d 317, 334 [1962]), aswell as permanently enjoining the defendants from interfering with the plaintiff's use ofthe easement, and dismissing the defendants' counterclaim. Hall, J.P., Roman, Duffy andLaSalle, JJ., concur.