Plaintiff, a religious corporation, commenced this action against defendant, an adjoining landowner, to compel defendant, successor in interest to Edgemont Condominium ("Edgemont"), to file an easement with respect to a pipe Edgemont installed on plaintiff's property in 1973. It also seeks $12,000 damages incurred by plaintiff when the subject pipe collapsed requiring repair.

Plaintiff contends that in 1973 Edgemont wanted to construct condominiums on a parcel of land, known as the Detmer property, adjoining that of plaintiff and sought approval for the project from the Village of Tarrytown Planning Board. As a condition of any approval the Planning Board required a drainage system for the project which included the installation of a pipe which traversed plaintiff's property.

By letter dated April 11, 1973, Edgemont's attorney sent a letter to plaintiff discussing the [*2]drainage for the project. By letter dated May 15, 1973, Edgemont's attorney informed plaintiff that Edgemont agreed to "install an adequate pipe connection from the Detmer estate under Prospect Avenue through your property to the pond, with an appropriate easement with respect to drainage outflow and an appropriate easement with respect to the maintenance of such pipe." In a May 15, 1973 letter, Edgemont's attorney wrote to plaintiff's attorney stating that he would soon provide "a proposed form of letter agreement between Edgemont and the Church."

At a Planning Board meeting held on May 21, 1973 the Board discussed the plan to resolve the drainage issues and noted that it required the submission of an acceptable agreement between the plaintiff and Edgemont. By letter to plaintiff dated June 1, 1973, Edgemont's attorney stated once again that Edgemont agreed to "install an adequate pipe connection from the Detmer estate under Prospect Avenue through your property to the pond, with an appropriate easement with respect to drainage outflow and an appropriate easement with respect to the maintenance of such pipe." Enclosed with the letter was a sketch of the project showing the location of the pipe on plaintiff's property.

On June 22, 1973 plaintiff and Edgemont signed a letter agreement which confirmed their understanding with respect to certain improvements which were to be made to plaintiff's property. In paragraph (c) of the letter agreement the parties expressly agreed that Edgemont would "install an adequate pipe connection from the Detmer estate under Prospect Avenue through your property to the pond, with an appropriate easement with respect to drainage outflow and an appropriate easement with respect to the maintenance of such pipe."

By letter dated June 26, 1973, Edgemont's attorney sent a fully executed copy of this letter agreement to the Village of Tarrytown. On August 7, 1973, the Planning Board Approved the agreement.

In April 2008 the pipe installed by Edgemont under the terms of its agreement failed causing damage and creating a large dangerous sink hole on plaintiff's property. On April 18, 2008, plaintiff informed defendant's attorney of the problem and asked defendant to pay for the repairs. In response, defendant took the position that it had no obligation to repair or maintain the pipe.

Thereafter, plaintiff commenced this action seeking a declaratory judgment that the easement in question exists, to compel defendant to execute and record the easement and to recover $12,000 in damages for repair costs incurred when the pipe failed.

After issue was joined, plaintiff moved for summary judgment. Defendant then cross moved for summary judgment to dismiss the complaint on the ground that "at no time was the understanding by the parties to enter into an agreement ever presented in contract form and executed by the respective parties." Further, no easement with respect to the maintenance of the subject pipe was ever filed. Defendant also argued that since all the members of plaintiff who negotiated with Edgemont are dead there is no privity of contract between it and plaintiff.

By order dated September 30, 2010, this Court granted plaintiff's motion and denied defendant's cross motion. Furthermore, the Court found all of the arguments raised in the defendant's cross motion frivolous and set the matter down for a hearing as to whether sanctions were warranted. The hearing was held on November 19, 2010.

At the hearing, plaintiff's attorney submitted a bill for his work on this case in the amount $18,333.00 plus $280.07 in costs and disbursements.

Discussion

Pursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the attorney for a party for frivolous conduct. (See 22 NYCRR 130-1.1 [b]). Conduct is frivolous if it is completely without merit in law or fact and cannot be supported by a reasonable argument for the extension, modification, or reversal of existing law; it is taken to primarily delay or prolong the resolution of the litigation, or harass or maliciously injure another; or it asserts material factual statements that are false. (See 22 NYCRR 130-1.1 [c];Palumbo v. Palumbo, 78 AD3d 1139, 911 N.Y.S.2d 665 [2nd Dept 2010]; Mascia v Maresco, 39 AD3d 504 [2nd Dept 2007]; Greene v Doral Conference Ctr. Assoc., 18 AD3d 429, 431 [2nd Dept 2005]).

As the Court noted in its September 10, 2010 decision, it found that the arguments raised in defendant's cross motion were frivolous and interposed solely to delay or prolong the litigation and make it more expensive for plaintiff. At the sanction hearing the Court asked defendant's counsel ^[FN1] what the good faith basis was for their cross motion for summary judgment. In reply, defense counsel made the same arguments advanced in the cross motion. Thereafter, in response to the Court's inquiry, defense counsel conceded that, even in the absence of an agreement as averred by defendant, there can be an easement by prescription in this case. (See Mee Wah Chan v. Y & Development Corp., 82 AD3d 942, 919 N.Y.S.2d 74 [2nd Dept 2011]["To establish an easement by prescription, the plaintiffs are required to show by clear and convincing evidence that the use was adverse, open and notorious, continuous, and uninterrupted for the prescriptive period. The right acquired is measured by the extent of the use . . . (citations omitted)"]). Defense counsel also admitted "I don't know if I would have made this motion . . . "

Based upon the foregoing, the Court determines that a sanction of $15,000.00 against defendant is appropriate in this case to compensate plaintiff for the necessity of moving for the relief requested and responding to defendant's frivolous cross motion.

Dated: White Plains, New York

April 25, 2011

Hon. William J. Giacomo,J.S.C.