The following papers numbered 1 to 18 were read on this motion by the plaintiff for an order restoring this matter to the active trial calendar; and defendant's cross-motion for an order pursuant to CPLR 3212 granting defendants summary judgment and dismissing the plaintiff's complaint on the ground that defendants have acquired title to the easement in question by adverse possession:

Papers

Numbered

Plaintiff's Notice of Motion-Affirmation-

Affidavits-Service-Exhibits...........................1 - 4

Defendant's Notice of Cross-Motion and

Affirmation in Opposition-Affidavits-Exhibits.........5 - 9

Plaintiff's Affirmation in Opposition

to Cross-Motion-Exhibits-Service.....................10 - 14

Reply Affirmation in Support of Cross-Motion.........15 - 18

Plaintiff, Fraternal Society of Canicatti, Inc., by notice of motion, seeks an order restoring this case to the active trial calendar. By order dated October 7, 2011, Justice Shulman vacated the plaintiff's note of issue and struck the matter from the [*2]trial calendar on the ground that all discovery had not been completed. Plaintiff's counsel now affirms that all discovery has been completed and that plaintiff wishes to proceed with the prosecution of the action.

Defendant does not oppose the plaintiff's request to restore the matter to the trial calendar. However, defendant requests that the court first determine its cross-motion for summary judgment.

Defendant cross-moves for an order pursuant to CPLR 3212, granting summary judgment in favor of HDFC on its counterclaim for a judgment declaring that plaintiff has no interest in the alleged easement as the plaintiff's rights to the easement in controversy have been extinguished by adverse possession.

This action was initially commenced by the plaintiff by the filing of a summons and complaint on May 7, 2008. In its complaint, the plaintiff, the owner of the premises located at 37-10 Astoria Boulevard, Astoria, NY, seeks an order pursuant to Article 15 of the Real Property Actions and Proceedings Law to compel the determination of claims to real property. Specifically, plaintiff seeks a declaration that it is entitled to an easement of right of way for access and egress to and from its premises and over and upon premises owned by the defendant. Plaintiff also seeks an injunction and monetary damages.

Defendant, 37-12 Astoria Boulevard Housing Development Fund Corporation (HDFC), has owned the premises next door together with an easement of right of way of a driveway. The easement is contained in the defendant's deed dated February 19, 1924 and consists of a driveway leading to the rear of the premises. Plaintiff maintains that in December 2006, defendant erected a gate and a fence blocking and preventing plaintiff's use of the driveway in violation of the easement which deprives plaintiff his lawful right to pass over defendant's property for ingress/egress to 38th Street. Plaintiff seeks an order declaring that the easement prohibits the defendant from erecting a fence across it.

Issue was joined by service of defendant's verified answer with counterclaims dated July 13, 2008. Defendant maintains that over ten years ago defendant installed and continuously maintained a fence around the backyard of its real property directly next door to plaintiff's property and a metal rolldown gate and that defendant's fence and gate are substantial enclosures which has blocked plaintiff's access into the alleged easement located on and behind the HDFC property. Defendant also claims that more than ten years ago it installed and maintained a [*3]metal pole in a portion of the easement which prevents plaintiff from driving motor vehicles across the easement. As a result, the defendant contends that it has extinguished the plaintiff's right to the easement by adverse possession and seeks an order declaring that plaintiff has no interest in the alleged easement.

In support of its cross-motion for summary judgment, defendant submits the affidavit of Andrew Apostolopoulos, President of HDFC who maintains that HDFC'S gate does not encroach into the easement and actually sits 2 inches outside of the easement. Counsel submits that the survey of the property indicates that the HDFC chain-link fence does not extend into the easement area. Also submitted is the affidavit of John Zacharopoulos, treasurer of HDFC who maintains that HDFC has extinguished plaintiff's easements rights through adverse possession due to HDFC'S installation of a metal pole during the early eighties. Counsel contends that defendants' residents have made use of the easement area since the early 1980s by installing and regularly using a clothesline pole which was erected in the easement area and which blocks the plaintiff's use and access to the easement area. Counsel states that the clothesline makes it impossible for any automobile to travel from 38th Street across th easement onto the plaintiff's property. In addition, HDFC maintains that in the late 1970s HDFC installed a rolldown gate at the entrance of the easement from 38th Street which prevented plaintiff from entering the easement from 38th Street. Defendant maintains that the aforementioned has extinguished plaintiff's right to the easement by adverse possession.

Defendant also submits the deposition testimony of Osvaldo LoVerme, President of the Fraternal Society of Canicatti, Inc. taken on July 22, 1011. Mr. Loverme testified that the plaintiff has owned the building located at 37-10 Astoria Boulevard since the 1960s. The Fraternal Society occupies the first floor and they rent out the rest of the building. Mr. LoVerme stated that despite the pole blocking the easement they never had trouble getting through the easement. There is also a rolldown gate which blocks the plaintiff's ingress to the easement. Mr. LoVerme stated that although no one from plaintiff's organization presently has a key to the rolldown gate, the club members previously had a key to the gate. Counsel contends that Mr. LoVerme's testimony is sufficient to show that the HDFC use of the easement was open, actual, exclusive and continuous for over ten years that the court should draw an inference of hostile possession and claim of right. [*4]

In opposition to the cross-motion, plaintiff's counsel states that the right of use of the easement does not pertain exclusively to the use of motor vehicles but also includes use by individuals. Counsel agues that even if the metal clothesline blocked vehicles from traversing the easement it did not prevent the use of the easement by individuals and he argues that the pole is not a substantial enclosure protecting the easement. Counsel claims that non-retractable fence which defendant's placed across the enclosure was placed there four years ago, well within the ten year statute of limitations.

Plaintiff's counsel also submits the affidavit Mr. LoVerme dated March 16, 2012, in which he states that all of defendants' actions restricting plaintiffs use and access to the driveway occurred within the last four or five years. Mr. Loverme states that the rolldown gate which allowed access to the easement from 38th Street was installed for security purposes by an auto parts store on the block which had access to the easement. Mr. LoVerme maintains that plaintiff possessed keys to access the easement until four years ago when defendant HDFC changed the padlock to the rolldown gate and at the same time installed a non-retractable fence across the easement, both gates preventing plaintiff from entering on 38th Street and accessing its property. Mr. LoVerme also states that the clothesline pole never obstructed or prevented the members from personally walking along the driveway or from operating their cars along the driveway.

Upon review and consideration of the plaintiff's motion, defendant's cross-motion and all other pleadings and proceedings had herein, this court finds that plaintiff's motion for an order granting leave to restore this matter to the trial calendar is granted without opposition by the defendant. The plaintiff shall file a new note of issue and pay all appropriate fees no later than 30 days from the date of this order with notice of entry. After filing the new note of issue and upon service of a copy of this order with notice of entry upon the clerk of the Trial Scheduling Part together with a copy of the note of issue, the clerk is hereby directed to restore this action to the Trial Scheduling calendar for November 15, 2012 at 9:30 a.m. at 88-11 Sutphin Boulevard, Jamaica, New York, 11435.

With respect to the defendant's cross-motion for summary judgment on its claim of adverse possession, the proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, [*5]in support of its position (see Zuckerman v. City of New York, 49 NY2d 557[1980]). In determining a motion for summary judgment the court must view the evidence in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 AD3d 895 [2d Dept. 2009]; Brown v Outback Steakhouse, 39 AD3d 450[2d Dept. 2007]).

An easement created by grant, such as the easement at issue here, may be extinguished by abandonment or adverse possession (see Gerbig v Zumpano, 7 NY2d 327[1960]). A party seeking to extinguish an easement by adverse possession must show by clear and convincing evidence, "the five elements of adverse possession: that the use of the easement has been (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of 10 years" (see (Spiegel v Ferraro, 73 NY2d 622 [1989]; Janoff v Disick, 66 AD3d 963 [2d Dept. 2009]; Koudellou v Sakalis, 29 AD3d 640 [2006]). The acts of the adverse possessor must be of such character that a titled owner would recognize the acts as manifesting a claim to the property that was hostile to his own, and that the titled owner needed to take action in order to preserve his property rights (see RSVL Inc. v Portillo, 851 NYS2d 61 [Sup Ct, Nassau County, 2007]).

This court finds that defendant's submissions fail to establish its prima facie entitlement to judgment as a matter of law on its counterclaim for adverse possession. There are questions of fact as to whether the defendant installed a type of physical barrier or obstruction which prevented plaintiff from using the easement during the entire prescriptive period. The metal clothesline pole in front of the easement relied upon by the defendants as a barrier to motor vehicles raises a question as to whether defendant's possession was hostile and under a claim of right. It is claimed that the pole did not prevent the plaintiff from utilizing the easement as individuals were able to merely walk around the pole. Thus, there is a question as to whether the pole effectively interfered with the plaintiff's use and enjoyment of the easement for the requisite number of years (see Seven Springs LLC v Nature Conservancy, 48 AD3d 545 [2d Dept. 2008]; Gold v Di Cerbo, 41 AD3d 1051 [3rd Dept. 2007]; McGinley v Postel, 37 AD3d 783 [2d Dept. 2007]). Further, there is a question of fact as to how long the plaintiffs were prevented from entering the easement through the rolldown gate. Mr. LoVerme testified that it was only after the defendants changed the lock four years ago that they did not possess a key to the gate.

Accordingly, as questions of fact remain that prevent a [*6]finding, as a matter of law, that plaintiff's easement was extinguished by adverse possession, the defendant's cross-motion for summary judgment is denied (see Dutcher v Allen, 93 AD3d 1101 [3rd Dept. 2012]).

Dated: May 15, 2012

Long Island City, NY

______________________

ROBERT J. MCDONALD

J.S.C.