Strong Real Estate, LLC v. 55 Town Line, LLC

• Decision Date: 03 March 2021
• Docket Number: Index No. 600135/17,2017–07005
• Citation: 192 A.D.3d 716,139 N.Y.S.3d 841 (Mem)
• Parties: STRONG REAL ESTATE, LLC, plaintiff-appellant, v. 55 TOWN LINE, LLC, respondent, Robert Weigel, defendant-Appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 716

139 N.Y.S.3d 841 (Mem)

STRONG REAL ESTATE, LLC, plaintiff-appellant,

v. 55 TOWN LINE, LLC, respondent,Robert Weigel, defendant-Appellant, et al., defendants.

2017–07005

Index No. 600135/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 14, 2020

March 3, 2021

Robert Kouffman & Associates, P.C. (Lazer, Aptheker, Rosella & Yedid, P.C., Melville, N.Y. [David Lazer and Zachary Murdock ], of counsel), for plaintiff—appellant.

MargolinBesunder LLP, Islandia, N.Y. (Linda U. Margolin and Karen I. Hansen of counsel), for defendant-appellant.

Pryor Cashman LLP, New York, N.Y. (Michael G. Goldberg, Todd B. Marcus, and Ross M. Bagley of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, for declaratory relief, the plaintiff and the defendant Robert Weigel separately appeal from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated May 9, 2017. The order, insofar as appealed from, granted the motion of the defendant 55 Town Line, LLC, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.

ORDERED that the appeal by the defendant Robert Weigel is dismissed; and it is further,

ORDERED that the order is reversed insofar as appealed from by the plaintiff, on the law, and the motion of the defendant 55 Town Line, LLC, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it is denied; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendant 55 Town Line, LLC.

The plaintiff, the defendant 55 Town Line, LLC (hereinafter 55 Town), and the defendant Robert Weigel owned lots in a 10–lot subdivision located in the Town of East Hampton. The original owner of these lots granted the Town, among other things, the subject two agricultural easements as a condition of the Town's approval of the plan for the subdivision. "Agricultural Easement B" (hereinafter easement B) burdens lot 9 of the subdivision, while "Agricultural Easement A" (hereinafter easement A) burdens, inter alia, portions of lots 2, 6, and 10. When granting these easements to the Town, the original owner reserved for the owner of lot 9 a right to enter easement A "for the sole purpose of engaging in agricultural activities and any use incidental thereto."

At the time this action was commenced in January 2017, 55 Town owned lot 9, Weigel owned lot 2, and the plaintiff owned lots 6 and 10. 55 Town had purchased lot 9 in August 2015 and submitted to the Town a plan to install structures related to the operation of a horse farm on easement B. In the complaint, the plaintiff alleged that, as part of this plan, 55 Town planned to use the portion of easement A burdening the plaintiff's lot 10 to travel between easement B and Wainscott Hollow Road, a public road that lot 9 had no access to otherwise. The plaintiff sought, among other things, a judgment declaring that 55 Town was not permitted to use the portion of easement A on lot 10 to access Wainscott Hollow Road. 55 Town moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against it. In an order dated May 9, 2017, the Supreme Court, among other things, granted the motion. The plaintiff and Weigel separately appeal.

Initially, Weigel's appeal must be dismissed, as he is not aggrieved by the portion of the order appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ).

"A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Bonavita v. Government Empls. Ins. Co., 185 A.D.3d 892, 893, 127 N.Y.S.3d 577 ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ). "[T]he documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" ( Teitler v. Pollack & Sons, 288 A.D.2d 302, 302, 733 N.Y.S.2d 122 ; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638...