This matter comes before the Court on Defendants' CPLR 3211 motion to dismiss the Complaint and Plaintiff's cross-motion to amend the Complaint. Defendants assert three grounds for their motion: (1) Plaintiff's lack of capacity to sue [CPLR 3211(a)(3)], (2) a defense based upon documentary evidence [CPLR 3211(a)(1)], and (3) failure to state a cause of action [CPLR 3211(a)(7)]. Plaintiff's motion seeks leave to amend the Complaint to augment its allegations as to its capacity to sue. This case concerns the costs associated with repair and maintenance of shared easements for ingress, egress, and utilities.

At the outset, the Court notes that after reviewing the proposed Amended Complaint annexed to Plaintiff's motion papers, Defendants have withdrawn — for purposes of their dismissal motion — their argument as to capacity to sue. Defendants' arguments as to a defense based on documentary evidence and failure to state a cause of action are linked in that they assert the clear language of the deed by which defendant MBN took title as precluding Plaintiff from stating a cause of action against either defendant, albeit for different reasons.

Defendants' CPLR 3211(a)(1) motion. To succeed on a motion brought pursuant to CPLR 3211(a)(1), the moving defendant must submit "documentary evidence that utterly refutes plaintiff's allegations, conclusively establishing a defense as a matter of law" (Crepin v. Fogarty, 59 AD3d 837, 838 [3d Dept 2009] [internal quotation marks and citation omitted]). The documentary evidence asserted here is the subject deed which, in Schedule A, describes several interests conveyed to MBN. These include (a) the metes and bounds of two easements for ingress, egress, and utilities, (b) the right to improve these easements by installing a paved driveway and utility services, and (c) the right to "drain and pipe storm water" from MBN's property to a basin located on an adjoining parcel.

Defendants point to language in Schedule A stating that MBN "shall repair any damage caused by it or its agents, contractors or invitees to the foregoing easements and rights of way." Defendants argue that the deed language is clear on its face, that there is no mention of maintenance costs, and that "repair" is simply not the same as "maintenance," for which Plaintiff [*2]is seeking contribution. In response, Plaintiff points to language at the beginning of the grant of easement: "Together with an easement in common, including all benefits and burdens, with the owner of the lands . . . ." Plaintiff cites the common-law rule that all users of an easement in common will share ratably in the cost of maintenance and repair of the easement unless there is an express agreement that provides otherwise (see e.g. Estate Court, LLC v. Schnall, 49 AD3d 1076, 1078 [3d Dept 2008]).

Two interpretations of the subject deed are thus offered by the parties. The initial language of the grant of easement cited by Plaintiff is argued as incorporating the common-law rule of ratable sharing of maintenance expense. The language cited by Defendants references repairs without any mention of maintenance. The Court's reading of the full description of the easements — as contemplated by RPL §240 — allows for a third alternative. The language asserted by Defendants requiring repair could have been specifically included because MBN was granted of the right to install a driveway and utilities, and to drain and pipe storm water onto an adjacent parcel, all of which could involve significant disturbance of the ground. Given these alternative interpretations, the deed language does not utterly refute Plaintiff's allegations and establish a defense as a matter of law.

Defendants' CPLR 3211(a)(7) motion. On this motion, both sides acknowledge that the Court must accept the facts as alleged in the Complaint as true, accord Plaintiff the benefit of every possible favorable inference and determine only whether the allegations in the Complaint fit within a cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 88 [1994]). Where defendant MBN is concerned, one of the possible interpretations of the deed language discussed above allows for the statement of a claim against MBN based on the common-law rule of ratable sharing of maintenance expenses.

Although it is notable that defendant Cheng was listed (before being stricken) as the party to whom the deed should be returned after recording, there is no mention of her in the operative language of the deed. Plaintiff's claim against Cheng ultimately rests on the particular statement of the common-law rule Plaintiff is asserting. The Estate Court case cited by Plaintiff says cost sharing is imposed upon "all users of an easement" (Estate Court, LLC v. Schnall, 49 AD3d at 1078). Another commonly-cited case refers to "all persons benefited" by a common easement (Green Harbour Homeowners' Assn., Inc. v. G.H. Dev. and Constr., Inc., 307 AD2d 465, 466 [3d Dept 2003]). However, other cases speak in terms of "all owners" of the dominant estate (e.g. Morgan v. Chong Kwan Jun, 30 AD3d 386 [2d Dept 2006]).

Tracing the authority cited in the Estate Court and Green Harbour opinions leads to a seminal case that is itself based on case law and learned treatises which link the obligation to share in maintenance costs with an ownership interest in the dominant estate (Allen v. Greenberg, 21 Misc 2d 763 [Sup Ct, Queens County 1959]). Indeed, there is at least one case that assigns the obligation to share maintenance costs only to those owners of an easement in common who benefit from the maintenance at issue, (Bet v. Geriak, 222 AD3d 1070 [3d Dept 2023]). On the record here, Dr. Chen has no ownership interest in the subject easement. Defendant's motion to dismiss the Complaint as against her must be granted.

The parties' remaining contentions have been considered, but do not alter the outcome of these motions. Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Defendants seeking to dismiss the Complaint is granted in part, insofar as the Complaint is dismissed as against defendant Dr. Mabel Chen, and denied in all other respects; and it is further

ORDERED, that the cross-motion of Plaintiff seeking leave to amend the Complaint is granted in part, insofar as Plaintiff is hereby granted leave to file and serve upon opposing counsel within 30 days of the date of this Decision and Order an Amended Complaint against defendant MBN Management Company, LLC only, including those allegations in the proposed Amended Complaint against MBN, and denied in all other respects.

Notice of Motion; Affirmation of Brian Lemanski; Memorandum of Law; Notice of Cross-Motion; Affirmation of Patrick L. Seely, Jr., Esq., with annexed exhibit; Memorandum of Law; Memorandum of Law In Reply.