Upon the following papers read on defendant's motion for summary judgment pursuant to CPLR §3212 and plaintiffs' cross-motion to amend the complaint pursuant to CPLR §3205(b), e-filed documents NYSCEF numbered 19 through 48, 51 through 148, and upon due deliberation and consideration given to the foregoing papers, the motion is decided as follows.

Plaintiffs commenced this action via filing of a summons and complaint on October 11, 2023, pursuant to Article 15 of the Real Property Actions and Proceedings Law (RPAPL) seeking to quiet title to real property owned by plaintiffs at 156 Dune Road, Quogue, New York, specifically regarding an existing easement recorded against their property in favor of defendant (see NYSCEF #2). Plaintiffs are seeking a determination that the easement at issue, a five (5) feet wide walkway providing beach access to defendant who lives at 147 Dune Road, Quogue, New York, be deemed extinguished by abandonment and barring any further claims from defendant and every person claiming rights under him. Issue was joined on December 14, 2023 (see NYSCEF #9). Plaintiffs allege that the easement was overgrown, in disrepair, and "defendant did not use the easement from at least the time of plaintiffs' purchase of the property in 2004 until after the completion of the construction of the wooden walkway in and around May 2023" and on that basis seek a determination that the easement had been abandoned (see NYSCEF #21 p. 4-5).

In support of his motion for summary judgment, defendant submits a notice of motion, affirmation from defendant with exhibits, statement of material facts, memorandum of law, memorandum of law in opposition to cross-motion, sur reply and additional correspondence. In opposition, plaintiffs cross-move to amend the complaint to include a claim for adverse possession in addition to the existing claim alleging abandonment of the easement, and submit affidavits from plaintiffs with exhibits, affidavits from nonparties, a memorandum of law, response to statement of material facts, counter statement of material facts, affirmation in opposition, notice of rejection and additional correspondence. The Court accepted and considered all of the above-mentioned papers. Oral argument was held before this Court.

Defendant submits a copy of the easement at issue, recorded on October 24, 1997, which created "a pedestrian easement as more particularly described herein, for the benefit of 147 Dune Road for ingress and egress on foot in, through, over, under and across a five (5) foot wide parcel . . . " described therein (see NYSCEF #21). The easement provides that its beneficiary is responsible for its maintenance and insurance and is expressly permitted to construct a "wooden walkway" thereon. The easement further provides that it "may not be revoked . . . shall run with the land . . . and shall not be changed, annulled, waived or modified, except by a writing signed by the party to be charged . . . in form suitable to entitle a deed to be recorded" (see NYSCEF # 21).

Defendant submits an affirmation in support detailing his history of use of the easement at issue (see NYSCEF 20, 28). Defendant states that he purchased his 147 Dune Road home in 2002 and has since routinely used the easement to traverse to the beach at various times of the day (see NYSCEF #23, #20 p. 4). He states that his friends, family and even his dog have used this easement consistently and he has hosted bonfires in that area on the beach (see NYSCEF #20 p.5; #30). He details further that in accordance with the provisions in the easement, in 2002 he constructed a wood walkway and stairway over the approximately 5 foot wide easement area and restored that walkway in approximately 2022, in accordance with town permits for the same (see NYSCEF #20 p. 5; #22, 25). Defendant addresses the allegations in the complaint that when plaintiffs allege they planted trees in the area of the easement location, and then subsequently erected a fence in that area, that such plantings and fencing did not infringe on his easement access as they were approximately six (6) feet west of the easement area (see NYSCEF #20 p. 5). Defendant submits and authenticates certain photographs illustrative of the easement, trees and fence as described (see NYSCEF #31 - 34). Defendant also submits bonfire permits from the Town of Southampton for the years 2013, 2016, and 2020 two of which indicate the location of said bonfire as "deeded access opp. 147 Dune" (see NYSCEF #30)

Plaintiffs submit affidavits in opposition to defendant's motion. Plaintiff Ray Goodman details that he was not aware of the easement at all from 2004 when he purchased his property, until 2022, upon receipt of a letter from the Village of Quogue regarding defendant's permit to repair the walkway (see NYSCEF #51 p. 2). He states that he has never seen anyone use the easement since he purchased his home in 2004 (see NYSCEF #51 p. 5). Mr. Goodman further states that when he and Mrs. Goodman planted trees in 2008 and erected a fence in 2010 that those trees and the fence "obstructed the use of the walkway" (see NYSCEF #51 p. 3). Plaintiffs' position is that "since 2008, at the latest, there was no traversable walkway because if there was, we would not have been able to plant the trees and we would not have been able to install the fencing" (see NYSCEF #51 p. 5). The affidavit of plaintiff Natharorn Goodman is substantially the same as her husband's and details also that she did not have knowledge of the easement and had "never seen anyone use or traverse" it (see NYSCEF #64).

"To obtain summary judgment it is necessary that the movant establish [the] cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in [movant's] favor (CPLR 3212, subd [b]), and [movant] must do so by tender of evidentiary proof in admissible form" (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067, 390 NE2d 298 [1979]). When evaluating the movant's evidence, the court must view it in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 960 NE2d 948 [2011]; Robinson v Strong Memorial Hospital, 98 AD2d 976 [1983]). "Failure to make this showing [of entitlement to judgment as a matter of law] requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853, 476 NE2d 642 [1985]; Deutsche Bank Natl. Trust Co. v Idarecis, 202 AD3d 1051 [2d Dept 2022]).

It is well-settled "that abandonment [of a deeded easement] occurs through the holder's nonuse, combined with the holder's intention to abandon. Moreover, the party asserting abandonment must demonstrate such intention by clear and convincing evidence" (see Janoff v Disick, 66 AD3d 963, 966 [2d Dept 2009]). "[A]bandonment does not result from nonuse alone, no matter how long, inasmuch as owners are not required to make use of their property" (see Janoff, supra, at p. 966). "The mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment" (see Gerbig v Zumpano, 7 NY2d 327, 331, 164 NE2d 178 [1960], quoting Roby v New York Cent. & Hudson Riv. R.R. Co. 142 NY 176 [1894]). The Court of Appeals notes in Consolidated Rail Corp., ibid, that "as we noted almost 100 years ago:, "Abandonment necessarily implies non-user, but non-user does not create abandonment no matter how long it continues. There must be found in the facts and circumstances connected with the non-user an intention on the part of the owner of the easement to give it up" (see Consolidated Rail Corp., supra, at p. 39). "The acts relied upon must be unequivocal and must clearly demonstrate the owner's intention to permanently relinquish all rights to the easement" (see Consolidated Rail Corp. v MASP Equipment Corp., 67 NY2d 35, 490 NE2d 514 [1986]).

As an initial matter, it must be noted that the property owned by plaintiffs has a recorded easement against it in defendant's favor. Said easement has not been altered, modified, or terminated by a writing signed by the party to be charged, as required by its plain terms. There are no allegations that the easement was not recorded or improperly recorded. Plaintiffs have constructive notice of the easement, as they "must be presumed to have investigated the title, and to have examined every deed or instrument properly recorded, and to have known every fact disclosed or to which an inquiry suggested by the record would have led" (see Fairmont Funding, Ltd. V Stefansky, 301 AD2d 562, 564 [2d Dept 2003]; Breakers Motel, Inc. v Sunbeach Montauk Two, Inc., 224 AD2d 473 [2d Dept 1996]).

As to the first element of abandonment, the requirement of non-use, this Court need not speculate as defendant has presented credible, admissible and compelling evidence showing that, in fact, he did make use of the deeded easement. Defendant's affirmation, as well as the bonfire permits from 2013, 2016 and 2020, and the permits from the Town of Southampton for the 2022 walkway maintenance, establish a prima facie case that defendant has been using his easement and has had no intention of abandoning it. In opposition, plaintiffs argue that defendant has not used the easement because they have never seen him use it. This Court rejects this contention of plaintiffs' as against the weight of the evidence and common sense, and certainly not proved by clear and convincing evidence. Further, plaintiffs argue that because they planted trees and erected a fence in the area of the easement, in 2008 and 2010, respectively, at a time when they allege they were unaware of this easement, that defendant could not have made use of the easement. Defendant's photographs and affirmation bely this argument and show that the trees and fence at issue did not interfere with his use of the easement and he had no reason to complain of or report them (see Del Fuoco v Mikalunas, 118 AD2d 980, 981-982 [2d Dept 1986]). Defendant has presented a prima facie case the plaintiffs do not meet an essential element required to obtain title to the easement property through abandonment, non-use, and plaintiffs have failed to raise a triable issue of fact.

With regard to the second essential element of abandonment, plaintiffs must prove by clear and convincing evidence defendant's "intent to abandon" the easement. Proof of such intent requires unequivocal acts that demonstrate an owner's intent is to "permanently relinquish all rights to the easement" (see Consolidated Rail Corp, supra, at 966). The record before this Court is simply devoid of the overt acts underlying the intention to abandon element that the law requires (see Janoff, supra). In fact, defendant's overt acts wholly disprove plaintiffs' baseless allegations that that they never saw defendant use the easement and that it was overgrown or blocked. The acts which defendant did take, hosting bonfires, traversing the easement with his family and dog, repairing the easement's walkway, are all acts which contradict plaintiffs' contention that defendant abandoned the easement. Defendant has presented a prima facie case that the plaintiffs do not meet this second essential element required to obtain title to the easement property through abandonment, intention to abandon, and plaintiffs have failed to raise a triable issue of fact warranting a trial.

Turning now to plaintiffs' cross-motion pursuant to CPLR §3025(b) to amend the complaint, which determination is within the court's sound discretion, the exercise of which should not be lightly disturbed (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 459 NE2d 164 [1983]; Castagne v Barouh, 249 AD2d 257 [2d Dept 1998]). "A court should deny a motion for leave to amend a petition if the proposed amendment is palpably insufficient, would prejudice or surprise the opposing party, or is patently devoid of merit" (see Town of Southampton v Chiodi, 75 AD3d 604, 606 [2d Dept 2010]). Plaintiffs' proposed amended complaint is altered to include a claim under adverse possession, which relies upon the same facts pled in the original complaint for abandonment of the easement (see Rogers v. South Slope Holding Corp., 255 AD2d 898 [1998]). "To establish a claim to property by adverse possession, the claimant must prove, by clear and convincing evidence, inter alia, that the possession of the property was (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the statutory period" (see Oppedisano v Arnold, 143 AD3d 873, 874 [2d Dept 2016]; BTJ Realty, Inc. v Caradonna, 65 AD3d 657 [2d Dept 2009]). As more fully discussed above, the evidence does not and cannot support a finding of adverse possession which requires, among its elements, both hostility and proof of continuous possession for ten (10) years. These elements fail due to the reasons discussed above, including plaintiffs' own affidavits stating they became aware of the easement in 2022, in contradiction to the constructive notice of said easement ascribed to plaintiffs as the bona fide purchasers of their property in 2004 (see NYSCEF # 51 p. 2; Fairmont Funding, Ltd., supra; Breakers Motel, Inc., supra). The cross-motion to amend the complaint is thus devoid of merit, as the record demonstrates (see Town of Southampton, supra) Accordingly, it is

ORDERED that defendant's motion for summary judgment is granted and the complaint is hereby dismissed; it is further

ORDERED that plaintiff's cross-motion for leave to amend the complaint is denied.

The foregoing constitutes the Decision and Order of the Court