Lester
Denmark AND NORMA DENMARK, Plaintiffs,
against
Irwin Shamah AND BARBARA SHAMAH,
Defendants.
|
13708/12
PlaintiffStephen Somerstein, Esq.
Brooklyn NYDefendant:
Solomon E. Antar, Esq.
Brooklyn NY
Arthur M. Schack, J.
following papers numbered 1 to 8 read on this motion:Papers
Numbered:
Order to Show
Cause_________________________________1Affirmation in
Opposition_____________________________2Hearing
Transcripts__________________________________3, 4Proposed Findings of
Fact and Conclusions of Law5, 6Memorandums of
Law________________________________7,
8_______________________________________________________________
_________
DECISION & ORDER
Plaintiffs LESTER and NORMA DENMARK (the DENMARKS) seek a
preliminary injunction to have defendants IRWIN and BARBARA SHAMAH (the
SHAMAHS) completely remove a fence and anything else impeding the DENMARKS'
use of a six-foot alleyway between their respective one-family homes in the Manhattan
Beach section of Brooklyn, at 144 and 142 Oxford Street. After reviewing the papers
submitted by both plaintiffs the DENMARKS and defendants the SHAMAHS,
transcripts from the hearings I conducted on December 23, 2013 and February 14, 2014
and the parties' proposed findings of fact and conclusions of law, the Court finds that
plaintiffs the DENMARKS demonstrate that they have an easement by prescription for
use of the alleyway between the two houses. Therefore, a preliminary injunction is
granted to plaintiffs the DENMARKS during the pendency of the instant action because:
there is a likelihood of success by plaintiffs the DENMARKS on the merits; plaintiffs the
DENMARKS will suffer irreparable injury if not being able to have access to their rear
yard through the subject alleyway; and, the equities tip in favor of plaintiffs the
DENMARKS.
BackgroundThe DENMARKS acquired
title to their detached premises at 144 Oxford Street,
Brooklyn, New York, by a bargain and sale deed, dated December 30, 1986.
The deed contains easements for light and air for three feet each of the adjoining
properties, 146 Oxford Street to the south and 142 Oxford Street to the north. There is a
separation of six feet in the alleyway between the houses at 144 and 142 Oxford Street,
except for part of the kitchen of the DENMARKS' house, which abuts the property line
in the alleyway. The property line runs down the center of the alleyway. Each party has
title to part of the alleyway, 3 feet in width by 100 feet in length, on their respective side
of the property line. Both parties have in their deeds reciprocal easements for 3 feet by
100 feet of their neighbor's adjoining property for light and air.
When the DENMARKS acquired title to 144 Oxford Street, their neighbors
at 142 Oxford Street were Samuel Rappaport and his wife, Gertrude Rappaport (the
Rappaports). The Rappaports acquired title to the property from a developer on June 14,
1946. The 1946 deed shows that the Rappaports' property had "an easement for light and
air over the most southerly three feet of premises adjoining on the south [144 Oxford
Street]; SUBJECT to a like easement over the most southerly of the three feet of the
premises herein described in favor of the premises adjoining on the south." The
Rappaports continued to own and occupy 142 Oxford Street until [*2]the last survivor, Samuel Rappaport, died on February 6,
1998. The Administrator of Samuel Rappaport's estate conveyed the premises to a new
owner on August 5, 1998. After two subsequent owners, title to 142 Oxford Street was
conveyed to defendants the SHAMAHS on December 22, 2011.
The six-foot wide alleyway in dispute provides ingress and egress for the
DENMARKS from their front driveway and side door of their house to their rear yard.
The DENMARKS' house has no rear door that opens into their rear yard. Further, there is
no door that opens from the DENMARK's house on the alleyway between it and the
adjoining property on their southerly side, 146 Oxford Street.
It was clearly established at the hearings I conducted that for ten years, from
December 30, 1986, when the DENMARKS acquired 144 Oxford Street, through
December 30, 1996, the DENMARKS used the entire six feet of the alleyway in dispute,
including the three-foot portion of the alleyway then belonging to the Rappaports at 142
Oxford Street, on a regular and frequent basis for ingress and egress from their front
driveway and side door of their home to the rear yard. This use was hostile, open,
notorious, continuous and uninterrupted during this ten-year period.
LESTER DENMARK testified, at the December 23, 2013 hearing, p. 21,
line 19 - p. 24, line 7:
Q.Have you used the entire six feet of the alley continually from
from December 20, 1986 to the present date?A.Yes.
Q.Did you use it up through December 31st - - January 1, 1997?
A.Yes.
Q.That would have been exactly ten years from the date you took
possession of the property; correct?
A.Yes . . .
Q.You used the alley openly; correct?
A.Yes.
Q.Was Mr. Rappaport aware of your use of the alley? Did he see
you using the alley?
A.I'm sure he occasionally saw us using the alley, but we hardly
saw him.
Q.You used the alley during the day; correct?
A.Yes.
Q.You used the alley in the evening; correct?
A.Sometimes.
Q.You used the alley on weekends; correct?
A.Yes . . .
Q.Did you ever discuss with Mr. Rappaport, ever ask Mr. Rappaport's
permission to use that alley?A.No.
Q.Why not?
A.Because the only access to that alleyway was through my driveway
and my front area and there was no access from Mr. Rappaport's
house.
So when I was shown the house this is the way I was shown
the house to get to my backyard.
Q.So you didn't ask Mr. Rappaport permission because you thought
you had the right to use it; correct?
You did not ask Mr. Rappaport permission to use that
alley because you believed you had a right to use that alley; is that
correct?
A.No, I did not.
Q.You did not believe you had the right?
A.I believed I had the right. I didn't ask Mr. Rappaport.Further, Mr.
DENMARK testified at the December 23, 2013 hearing, p. 25, lines 2 - 18:
Q.Did you ever have any discussion at all with Mr. Rappaport
about your use of the alley?
A.No, I did not.
Q.Did you have a cordial relationship with Mr. Rappaport or
something else?
A.You know, just good morning. When we saw each other we said
hello. He was an elderly gentleman. We didn't have much in
common. No socializing.Q.You didn't have much to do with him?
A.No.
Q.You never engaged in any cooperative efforts to maintain the
property or helping shovel?
A.No, but when there was a snowstorm I cleared out that six-foot
area of snow between the two houses.
Q.Fair to describe your relationship with Mr. Rappaport as distant
and formal?
A.Yes.
Two neighbors, Nina Chin and Jason Starr, at the February 14, 2014 hearing,
corroborated Mr. DENMARK's testimony that since late 1986 he used the subject alley
without permission from Mr. Rappaport and the two subsequent owners of 142 Oxford
Street before the SHAMAHS, and that the DENMARKS' use of the subject alleyway was
hostile, open, notorious, continuous and uninterrupted. Defendant BARBARA
SHAMAH claimed, at the February 14, 2014 hearing, that Mr. DENMARK, in January
2012, asked her for permission to use the alley for access to his backyard. Mr.
DENMARK, in rebuttal testimony, denied having this conversation with Mrs.
SHAMAH.
On or about June 28, 2012, the SHAMAHS erected an approximately
five-foot high chain link fence on the property line in the middle of the alley between
142 and 144 Oxford Street, with the fence running 100 feet from east to west for the full
length of the property line. Because of the bay feature of the DENMARKS' kitchen, that
portion of their house protrudes into the [*3]alley for the
three feet on the DENMARKS' side of the alley. Thus, the fence erected by the
SHAMAHS abutted directly on the bay feature of the DENMARKS' kitchen, preventing
the DENMARKS from having any access to their rear yard.
A few days later the DENMARKS commenced the instant action to declare
that they have an easement for use of the subject alleyway and sought a temporary
restraining order to have the SHAMAHS remove the fence and anything else from
impeding access to the alley for the DENMARKS. On July 11, 2012, upon the consent of
the parties, the SHAMAHS agreed to voluntarily remove the fence upon condition that
plaintiffs the DENMARKS post a $2,000.00 bond, pending the determination of the
action, in the event that defendants the SHAMAHS prevail. The DENMARKS, in the
instant order to show cause allege that the SHAMAHS, despite removing the fence,
continue to impede their access to the alleyway by keeping fence poles in place and
placing garbage cans and other obstacles in the alleyway. After numerous conferences to
settle this matter, the Court conducted two hearings on the instant order to show cause
seeking a preliminary injunction, to have the SHAMAHS completely remove the fence
and anything else impeding the DENMARKS' use of the subject alleyway between their
houses.Discussion
Pursuant to CPLR § 6301, a preliminary injunction, "may be granted . .
. when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on
the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and
(3) a balance of equities tipping in the moving party's favor (Grant Co. v Srogi,
52 NY2d 496, 517 [1981])." (Doe v Axelrod, 73 NY2d 748, 750 [1988]). (See Nobu Next Door, LLC v Fine
Arts Housing, Inc., 4 NY3d 839 [2005]; 1650 Realty Associates, LLC v Golden Touch Management,
Inc., 101 AD3d 1016, 1017-1018 [2d Dept 2012]; Arthur J. Gallagher & Co. v
Marchese, 96 AD3d 791, 792 [2d Dept 2012]; Perpignan v Persaud, 91 AD3d
622, 622-623 [2d Dept 2012]; Cooper v Board of White Sands Condominium, 89 AD3d
669, 669 [2d Dept 2011]).
In Related Properties, Inc. v
Town Bd. of Town/Village of Harrison (22 AD3d 587, 590 [2d Dept 2005]), the
Court instructed that:
Since a preliminary injunction prevents litigants from taking
actions that they would otherwise be legally entitled to take in advance
of an adjudication on the merits, it is considered a drastic
remedy
which should be issued cautiously(see Uniformed Firefighters
Assn.
of Greater NY v City of New York, 79 NY2d 236, 241 [1992];
Gagnon
Bus Co. Inc. v Vallo
Transp. Ltd., 13 AD3d 334 [2004]; Bonnieview
Holdings v Allinger, 263 AD2d 933 [1999]). [Emphasis
added]
Because injunctive relief is drastic, the Court in Gagnon Bus Co. Inc., at 335,
held that the party seeking "a preliminary injunction must establish a clear right to that
relief under the law and the undisputed facts upon the moving papers (see William M.
Blake
Agency, Inc. v Leon, 283 AD2d 423 [2d Dept 2001])." (See
Peterson v Corbin, 275 AD2d 35 [2d Dept 2000]; Blueberries Gourmet v Aris
Realty Corp., 255 AD2d 348, 350 [2d Dept 1998]).
An injunction is a provisional remedy to maintain the status quo until a full
hearing can be held on the merits of an action. As such "[t]he decision to grant or deny a
preliminary injunction rests on the sound discretion of the Supreme Court." (Ruiz v Meloney, 26 AD3d
485 [2d Dept 2006]). (See
County of Suffolk v Givens, 106 AD3d 943, 944 [2d Dept 2013]; [*4]Arcamone-Makinano v Britton Prop., Inc., 83 AD3d
623, 625 [2d Dept 2011]; Rowland v Dushin, 82 AD3d 738, 739 [2d Dept
2011]).
In the instant action, plaintiffs the DENMARKS have made a prima facie
showing sufficient to demonstrate that they have an easement by prescription for use
of the subject alleyway and will likely succeed on the merits. The DENMARKS
demonstrated that they have a clear right to a prescriptive easement. "To acquire a
prescriptive easement, a party must establish by clear and convincing evidence that the
use of the property was hostile, open and notorious, and continuous and uninterrupted for
the prescriptive period of 10 years (see Old Town Tree Farm, Inc. v Long Island Power Auth., 101
AD3d 692 [2d Dept 2012]; Garden Homes Mobile Park Co. LP v Patel, 100
AD3d 668 [2d Dept 2012]; Masucci v De Luca, 97 AD3d 550, 551 [2d Dept
2012]; CSC Acquisition-NY,
Inc. v 404 County Rd. 39A, Inc., 96 AD3d 986, 987 [2d Dept 2012])."
Plaintiffs have demonstrated that they have used the 3 foot by 100 foot portion of the
subject alleyway belonging to their neighbors at 142 Oxford Street for access to the rear
portion of their property for more than the ten year prescriptive period. The record
supports plaintiffs' contention that their use of the alleyway at issue was open, notorious,
continuous and uninterrupted for beyond the prescriptive period. "It is well established
that where an easement has been shown by clear and convincing evidence to be open,
notorious, continuous, and undisputed, it is presumed that the use was hostile, and the
burden shifts to the opponent of the allegedly prescriptive easement to show that the use
was permissive." (Frumkin v Chemtop, 251 AD2d 449 [2d Dept 1988]). The
SHAMAHS failed to show that the DENMARKS' use of the alleyway was permissive.
Mrs. SHAMAH's testimony that she gave permission to Mr. DENMARK to use the
alleyway at issue is not likely to defeat plaintiffs' claim at trial. It is irrelevant, because at
that point in time, in early 2012, the DENMARKS were using the alleyway for more than
25 years after the prescriptive period began to run or more than 15 years after the
prescriptive period expired.
Further, the fence poles and any obstacles placed in the alleyway preventing the
DENMARKS from having ingress and egress to and from their rear yard causes
irreparable harm to the DENMARKS. The denial of access to their rear yard is
immediate and not speculative. "The irreparable harm must be shown by the moving
party to be imminent, not remote or speculative." (Golden v Steam Heat, Inc., 216
AD2d 440, 442 [2d Dept 1995]). (See Village/Town of Mount Kisco v Rene Dubos Center for Human
Environments, Inc., 12 AD3d 501 [2d Dept 2004]; Neos v Lacey, 291
AD2d 434 [2d Dept 2002]).
Lastly, the equities clearly tip in favor of plaintiffs the DENMARKS. From
December 30, 1986 to June 28, 2012 they used the entire alleyway between their home at
144 Oxford Street and the house at 142 Oxford Street for access to their rear yard in an
open, notorious, continuous and uninterrupted fashion. Mr. Rappaport, the owner of 144
Oxford Street throughout the prescriptive period, never granted or denied permission to
the DENMARKS to use his portion of the subject alleyway. Thus, it is presumed that the
use of the subject alleyway by the DENMARKS was hostile.
Therefore, the Court grants to plaintiffs the DENMARKS a preliminary injunction
for defendants the SHAMAHS to completely remove the fence, fence poles and anything
else [*5]impeding the DENMARKS' use of the six-foot
alleyway between their respective one-family homes.
ConclusionAccordingly, it is hereby
ORDERED, that the Court grants plaintiffs LESTER DENMARK and NORMA
DENMARK a preliminary injunction requiring defendants IRWIN SHAMAH and
BARBARA SHAMAH, pending the final determination of this action, to completely
remove the fence they installed in the alleyway on the border between the properties of
the parties, at 142 and 144 Oxford Street, Brooklyn, New York, along with any
remaining poles and all its other remnants, and to otherwise refrain from impeding and/or
blocking plaintiffs from clear access and use of the three-foot portion of the six-foot alley
at issue for ingress and egress from their driveway and side door to their rear yard in any
manner, including, but not limited to, the placement of trash, debris, furniture, garbage
cans or any other such items in a manner that obstructs said alley; and it is further
ORDERED, that the bond for two thousand dollars already posted by plaintiffs
LESTER DENMARK and NORMA DENMARK shall be deemed a sufficient
undertaking so long as the preliminary injunction remains in place.
This constitutes the Decision and Order of the Court.ENTER
___________________________
HON. ARTHUR M. SCHACKJ. S. C.