| 5000, Inc. v Hudson One, Inc. |
| 2015 NY Slip Op 05909 [130 AD3d 678] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| 5000, Inc., Appellant-Respondent, v HudsonOne, Inc., et al., Respondents-Appellants, et al., Defendant. |
Feerick Lynch MacCartney, PLLC, South Nyack, N.Y. (Donald J. Feerick, Jr., ofcounsel), for appellant-respondent.
Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains, N.Y. (Stuart E.Kahan of counsel), for respondents-appellants.
In an action, inter alia, pursuant to RPAPL 871 for an injunction restraining thedefendants from trespassing and occupying real property allegedly owned by the plaintiffand directing the defendants to remove certain encroachments, (a) the plaintiff appealsfrom (1) so much of an order of the Supreme Court, Rockland County (Berliner, J.),dated January 2, 2014, as granted that branch of the motion of the defendants HudsonOne, Inc., and Florence One, Inc., which was for summary judgment dismissing theamended complaint insofar as asserted against them, and (2) an order of the same courtdated June 3, 2014, which denied its motion for leave to renew or reargue its oppositionto that branch of the motion of the defendants Hudson One, Inc., and Florence One, Inc.,which was for summary judgment dismissing the amended complaint insofar as assertedagainst them, and (b) the defendants Hudson One, Inc., and Florence One, Inc.,cross-appeal, as limited by their brief, from so much of the order dated January 2, 2014,as denied those branches of their motion which were for summary judgment on theircounterclaim declaring that the defendant Florence One, Inc., is the owner of a certainportion of a certain private street and pursuant to 22 NYCRR 130-1.1 to impose asanction against the plaintiff and its attorney.
Ordered that the appeal from so much of the order dated June 3, 2014, as denied thatbranch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeallies from an order denying reargument; and it is further,
Ordered that the appeal from so much of the order dated June 3, 2014, as denied thatbranch of the plaintiff's motion which was for leave to renew is dismissed as academic inlight of our determination of the appeal from the order dated January 2, 2014; and it isfurther,
Ordered that the order dated January 2, 2014, is reversed insofar as appealed from,on the law, and that branch of the motion of the defendants Hudson One, Inc., andFlorence One, Inc., which was for summary judgment dismissing the amended complaintinsofar as asserted against them is denied; and it is further,
Ordered that the order dated January 2, 2014, is affirmed insofar as cross-appealed[*2]from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The defendants Hudson One, Inc., and Florence One, Inc. (hereinafter together theHudson defendants), moved, among other things, for summary judgment dismissing theamended complaint insofar as asserted against them. They contended, inter alia, that a lotallegedly owned by the plaintiff, which abuts a private street known as Florence Streetthat is the subject of this dispute (see 5000, Inc. v Hudson One, Inc., 130 AD3d 676— [2015] [decided herewith]), had been conveyed by the plaintiff to anonparty prior to the commencement of this action. The Hudson defendants establishedtheir prima facie entitlement to judgment as a matter of law on this ground by profferingan executed deed, found in the records of the plaintiff's attorney, which purported toconvey the lot from the plaintiff to a nonparty corporate entity prior to thecommencement of this action. In opposition, however, the plaintiff raised a triable issueof fact as to its ownership of the lot and as to the validity of the alleged conveyance tothe nonparty by submitting a transcript of the deposition testimony of the plaintiff'spresident, who testified that she did not remember ever seeing the unrecorded deed andthat the named nonparty grantee was a contemplated corporate entity which had neverbeen formed (see Matter ofHausman, 13 NY3d 408 [2009]; Diallo v Grand Bay Assoc. Enters., Inc., 85 AD3d 628[2011]). Moreover, the plaintiff submitted an affirmation from its attorney stating that,although he had prepared the subject deed purporting to convey the lot to the nonpartygrantee, the conveyance was never completed. Therefore, the plaintiff demonstrated theexistence of a triable issue of fact as to its ownership of the lot at the time this action wascommenced (see M&TReal Estate Trust v Doyle, 20 NY3d 563, 568 [2013]). The Hudson defendants'remaining contentions with respect to that branch of their motion which was forsummary judgment dismissing the amended complaint insofar as asserted against themare without merit. Accordingly, the Supreme Court should have denied that branch oftheir motion.
With respect to that branch of the Hudson defendants' motion which was forsummary judgment on their counterclaim declaring that the defendant Florence One, Inc.,is the owner of the disputed, eastern portion of Florence Street, the Hudson defendantsfailed to establish, prima facie, that the plaintiff did not own the eastern portion of thestreet and that, instead, the defendant Florence One, Inc., owned that portion of the street.Accordingly, the Supreme Court properly denied that branch of their motion (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
The Hudson defendants failed to establish that the commencement of this action andthe subsequent conduct of the plaintiff and its attorney in this litigation were frivolouswithin the meaning of 22 NYCRR 130-1.1. Therefore, the Supreme Court providentlyexercised its discretion in denying that branch of the Hudson defendants' motion whichwas to impose a sanction against the plaintiff and its attorney (see Muro-Light v Farley, 95AD3d 846 [2012]). Mastro, J.P., Skelos, Dickerson and LaSalle, JJ., concur.