| Curanovic v Cordone |
| 2015 NY Slip Op 09398 [134 AD3d 978] |
| December 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Djekota Curanovic et al., Appellants, v PeterCordone et al., Respondents. |
Eric J. Rotbard, White Plains, NY, for appellants.
Ahmuty, Demers & McManus, Albertson, NY (Nicholas M. Cardascia andGlenn A. Kaminska of counsel), for respondents.
In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring thatthe defendants' property is subject to an easement in favor of the plaintiffs' property, theplaintiffs appeal, as limited by their brief, from so much of a judgment of the SupremeCourt, Westchester County (Lefkowitz, J.), entered July 16, 2014, as, upon a decisionand order of the same court (Colabella, J.) entered August 27, 2009, made after a nonjurytrial, and an order of the same court (Lefkowitz, J.), entered April 4, 2014, granting thedefendants' motion pursuant to CPLR 2004 to extend the time to enter judgment, is infavor of the defendants and against them dismissing the complaint.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing those causes of action in the complaint which sought a declaration that thedefendants' property is subject to an easement in favor of the plaintiffs' property, andadding thereto a provision declaring that the defendants' property is not subject to aneasement in favor of the plaintiffs' property; as so modified, the judgment is affirmedinsofar as appealed from, with costs to the defendants.
The plaintiffs and the defendants are neighbors in Yorktown Heights and share acommon right-of-way from Hayes Road. In 1947, the common owner of both parcels,Ella Hayes, subdivided her property into what is now the plaintiffs' property and thedefendants' property. A 10-foot-wide strip of land between the parties' properties was notconveyed to either property. The plaintiffs' deed gives them "a right of ingress and egressover the driveway along the southerly line of the premises to Hayes Drive, in commonwith others." The defendants' deed provides for "ingress and egress over the roadsleading into the Hayes Property from the County Road." The defendants' deed alsodescribes their property as "to the south side of a 10 foot right of way." The parties donot dispute that they each have the right of ingress and egress over the 10-foot-wide stripof land, but disagree as to whether the plaintiffs have an easement to use portions of thedefendants' property as a driveway.
According to the plaintiffs, beginning in September 2007, the defendants began torestrict access to portions of the common driveway that were on the defendants' property.In October 2007, the plaintiffs commenced this action seeking a declaration that thedefendants' property is [*2]subject to an easement infavor of the plaintiffs' property. After a nonjury trial, the Supreme Court issued adecision and order entered August 27, 2009, in effect, directing the dismissal of theplaintiffs' claims, and directing that a judgment be settled on notice. However, thedefendants did not settle the judgment within 60 days, as required by 22 NYCRR202.48.
In 2011, the plaintiffs commenced a second action, seeking essentially the samerelief that was denied in this action, and asserting additional causes of action. Thedefendants moved for summary judgment in the second action, inter alia, dismissingnumerous causes of action on the ground that they had been dismissed in this action andwere thus barred by the doctrine of res judicata. The Supreme Court denied the motion,partly because no judgment had been entered in this action.
Thereafter, the defendants moved pursuant to CPLR 2004 in this action to extendtheir time to settle the judgment pursuant to the decision and order entered August 27,2009. In an order entered April 4, 2014, the Supreme Court granted the motion, and ajudgment was entered. On this appeal from that judgment, the plaintiffs contend that theSupreme Court erred in extending the defendants' time to settle the judgment, indismissing their first cause of action as abandoned, and in dismissing their causes ofaction seeking an easement by prescription or necessity.
"It is within the sound discretion of the court to accept a belated order or judgmentfor settlement" (Russo v Russo, 289 AD2d 467, 468 [2001]; see Dime Sav.Bank of N.Y. v Anzel, 232 AD2d 446 [1996]). Moreover, a court should not deeman action or judgment abandoned where the result "would not bring the repose to courtproceedings that 22 NYCRR 202.48 was designed to effectuate, and would wastejudicial resources" (Meany v Supermarkets Gen. Corp., 239 AD2d 393, 394[1997]; see Zaretsky v Ok HuiKim, 17 AD3d 455, 456 [2005]; Matter of Argento v New York State Div.of Hous. & Community Renewal, 269 AD2d 443, 444 [2000]; Crawford vSimmons, 226 AD2d 667 [1996]). Here, while we do not condone the defendants'dilatory behavior, we agree with the Supreme Court that, on the particular facts of thiscase, the interests of justice demand that the court not be burdened with the trial ofdemonstrably meritless causes of action (see Russo v City of New York, 206AD2d 355, 356 [1994]). A contrary result would not bring the repose to courtproceedings that 22 NYCRR 202.48 was designed to effectuate, and would wastejudicial resources (see id. at 356). Accordingly, the Supreme Court did notimprovidently exercise its discretion in extending the time in which to settle thejudgment.
With respect to the cause of action seeking a declaration that the plaintiffs have anexpress easement, we disagree with the Supreme Court that the plaintiffs abandoned thiscause of action by not specifically describing it in their posttrial brief (see Silvermanv Silverman, 304 AD2d 41, 46 [2003]; Colangione v State of New York, 187AD2d 844, 845, 846 [1992]). However, this cause of action should have been dismissedbased upon the evidence adduced at trial. As the parties argued this issue at the trialbefore the Supreme Court, and briefed the issue on appeal, we address it in the firstinstance in the interests of judicial economy (see Dockery v Sprecher, 68 AD3d 1043, 1046 [2009]).Here, based upon the relevant deeds and the trial testimony, we find that the plaintiffsfailed to show that the grantor intended to grant them an express easement over thedefendants' land, beyond the 10-foot right of way (see Ribellino v 110 Fifth St. Private, LLC, 112 AD3d 807,808 [2013]; Menucha of Nyack,LLC v Fisher, 110 AD3d 1037, 1040 [2013]).
The Supreme Court correctly determined, with respect to the cause of action alleginga prescriptive easement, that the plaintiffs failed to show by clear and convincingevidence that the use of the defendants' property was open, adverse, notorious, andcontinuous for the requisite 10-year time period (see Old Town Tree Farm, Inc. v Long Is. Power Auth., 101AD3d 692, 692 [2012]; Garden Homes Mobile Home Park Co. LP v Patel, 100 AD3d688, 689 [2012]; Masucci vDeLuca, 97 AD3d 550, 551 [2012]). The evidence at trial established that theuse was not continuous and uninterrupted for 10 years (see Masucci v DeLuca,97 AD3d at 551).
Further, the Supreme Court properly determined that an easement by necessity didnot exist, because additional access to the defendants' property was neither reasonablenor necessary for the fair enjoyment and beneficial use of the plaintiffs' property (seeSimone v Heidelberg, 9 [*3]NY3d 177, 182 [2007];Klumpp v Freund, 83 AD3d790, 793 [2011]; cf.Faviola, LLC v Patel, 114 AD3d 823, 824-825 [2014]).
The plaintiffs' remaining contentions are without merit.
Since the complaint sought declaratory relief, we modify the judgment by adding aprovision thereto declaring that the defendants' property is not subject to an easement infavor of the plaintiffs' property (see Lanza v Wagner, 11 NY2d 317, 334 [1962]).Leventhal, J.P., Dickerson, Maltese and Duffy, JJ., concur.