Valenti v. Clocktower Plaza Props., Ltd.

• Decision Date: 11 June 2014
• Citation: 2014 N.Y. Slip Op. 04187,118 A.D.3d 776,986 N.Y.S.2d 629
• Parties: Dominick VALENTI, appellant, v. CLOCKTOWER PLAZA PROPERTIES, LTD., respondent, et al., defendant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 776

986 N.Y.S.2d 629

2014 N.Y. Slip Op. 04187

Dominick VALENTI, appellant,

v.CLOCKTOWER PLAZA PROPERTIES, LTD., respondent, et al., defendant.

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

June 11, 2014.

Markotsis & Lieberman, P.C., Hicksville, N.Y. (Douglas M. Lieberman of counsel), for appellant.

Tillim & Shepardson, Melville, N.Y. (Allison M. Kourbage of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

In an action, inter alia, for declaratory relief and a permanent injunction enjoining the defendant Clocktower Plaza Properties, Ltd., from utilizing the plaintiff's property as a means of ingress and egress pursuant to an easement dated March 20, 1989, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered March 21, 2013, which granted that branch of the motion of the defendant Clocktower Plaza Properties, Ltd., which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it based on the doctrine of res judicata.

ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendant Clocktower Plaza Properties, Ltd., which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it based on the doctrine of res judicata is denied.

In July 2009, the plaintiff commenced an action (hereinafter the first action) seeking damages against, among others, Clocktower Plaza Properties, Ltd. (hereinafter Clocktower), alleging that Clocktower had breached an easement agreement between the parties by failing to make any payments pursuant to that agreement between February 2001 and February 2009. The Supreme Court awarded Clocktower summary judgment dismissing the first action as time-barred.

In May 2010, the plaintiff commenced another action against Clocktower (hereinafter the second action), alleging that Clocktower was committing a continuing trespass by continuing to enter onto his property without his consent. The Supreme Court awarded Clocktower summary judgment dismissing the second action on the ground that, as an out-of-possession landlord, the plaintiff could not maintain an action sounding in trespass.

In September 2012, the plaintiff commenced the instant action against, among others, Clocktower, seeking, inter alia, a permanent injunction enjoining it from entering onto his property. The plaintiff alleged, among other things, that Clocktower had breached the easement agreement by continuing to refuse to make payments as required under its terms and that, consequently, he had properly terminated the agreement, thus stripping Clocktower of any rights it might have had to enter upon his property. Alternatively, the plaintiff alleged that, since Clocktower had asserted in the second action that it was not a party to the easement agreement,Clocktower was judicially estopped from arguing otherwise and, thus, it had no rights arising from the easement agreement and no other basis...