`FILED: SCHOHARIE COUNTY CLERK 05/10/2022 11:29 AM
`FILED:| SCHOHARIE COUNTY CLERK 05/10/
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`2022 11:29 B
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`STATE OF NEW YORK
`COUNTY OF SCHOHARIE
`SUPREME COURT
`TT
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`FEDERAL NATIONAL MORTGAGE
`ASSOCIATION (“FANNIE MAE”) A
`CORPORATION ORGANIZED AND EXISTING
`UNDER THE LAWSOF THE UNITED STATES
`OF AMERICA,
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`Plaintiff,
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`-against-
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`FRED DUFEK,JR.; ROBIN DUFEK;
`LAURIE DUFEK; TROY DUFEK,
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`Defendants.
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`DECISION & ORDER
`Index No.: 2022-3
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`(Supreme Court, Schoharie County, Motion Term)
`APPEARANCES:_Robert M. Link, Esq.
`David A. Gallo & Associates LLP
`Attorneysfor Plaintiff
`47 Hillside Avenue, Second Floor
`Manhasset, New York 11030
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`RECEIVED NYSCEF: 05/10/2022
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`Charles Wallshein, Esq.
`Charles Wallshein Esq. PLLC
`Attorneysfor Defendants
`35 Pinelawn Road, Suite 106E
`Melville, New York 11747
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`HON. JAMESH. FERREIRA, Acting Justice:
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`Plaintiffownsreal property located at 208 Bassler Road, Middleburgh, New York, whichis
`comprised of two parcels identified as Lot 3 and Lot4 (hereinafter the property or 208 Bassler).
`There is a residence located on Lot 3. Plaintiff obtained the property pursuant to a referee’s deed
`dated April 28, 2017 following the issuance of a JudgmentofForeclosure. Defendants are former
`ownersofthe property and, according to plaintiff, are currently occupying the residence located on
`Lot 3. Defendants Fred Dufek, Jr., and Robin Dufek (hereinafter Fred and Robin) own a parcel,
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`identified as Lot 12, that is adjacent to both Lot 3 and Lot 4. Plaintiff alleges in the complaint that
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`Lot 12 includes a driveway that servesas the only ingress and egress between Bassler Road and Lot
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`3, where the residence at 208 Bassler is located.
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`Plaintiff commencedthis action in January 2022, seeking injunctive and declaratory relief,
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`the granting of an easement by necessity and/or implication, or in the alternative a temporary
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`easement, and an award of damages and attorney’s fees.
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`In the complaint, plaintiff alleges that
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`defendants are wrongfully interfering with plaintiffs use and enjoymentofits property and access
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`to its property by, amongother things, using “fences, signage threatening violence, cameras, and
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`locks” (Complaint 4 10). Plaintiff specifically alleges that its agent visited the property on several
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`occasions and observed that “the premises do not have road access to conduct the eviction and
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`removal of the personal possessionsfrom the premises.
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`In particular, a locked and chained metal
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`gate with signs. .
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`. is blocking and preventing road access” (id. 4 11). Plaintiff alleges thatit has
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`been unable to enforce a Warrant of Eviction obtained by plaintiff in a holdover proceeding
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`commencedin the Town ofMiddleburgh Justice Court and seeks an injunction enjoining defendants’
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`wrongful interference with its property.
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`Plaintiff further alleges in the complaintthatit is the owner of an easement appurtenant on
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`Lot 12 that benefits 208 Bassler Road, as described in a 1997 Deed. Plaintiff allegesthatit is also
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`entitled to an easement by necessity on Lot 12, created by operation of law when Lot 3 was
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`transferred to plaintiff in the foreclosure action, allowing ingress and egress from Bassler Road to
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`the residence on Lot 3. Plaintiff additionally allegesthatit is entitled to an easementby implication
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`on Lot 12 because,at the timetitle to the parcels was unified, “an apparently permanent and obvious
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`servitude was imposed on onepart of[the] estate in favor of another” such that the burden on the
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`property remains after severanceoftitle (Complaint § 23). Plaintiff asserts that an easement on Lot
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`12 will not substantially interfere with the property rights of its owners and, if an easementis not
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`granted, the residence on Lot 3 “will be entirely landlocked with no ingress or egress”(id, 427).
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`Issue was joined by the service of an answer by defendants which generally denied the
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`allegations in the complaint andraised several affirmative defenses. Plaintiffnow movesfor, among
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`other things, an order granting it summary judgmenton its complaint, as well as a preliminary
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`injunction. Defendants oppose the motion andplaintiff has submittedareply.
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`Summary judgmentis a drastic remedy which should only be granted where there are no
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`doubts as to the existence ofa triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223,
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`231 [1978]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Black v Kohl’s Dept. Stores, Inc., 80
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`AD3d 958, 959 [3d Dept 2011]). “fT]he proponent of a summary judgment motion must make a
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`primafacie showing of entitlement to judgment as a matterof law, tendering sufficient evidence to
`demonstrate the absence ofany material issues offact” (Alvarez v Prospect Hosp., 68 NY2d 320,
`324 [1986]; see Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]; Baird v Gormley, 116 AD3d
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`1121, 1122 [3d Dept 2014]).
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`If the proponent’s burden is met, “the burden shifts to the party
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`opposing the motion for summary judgment to produce evidentiary proof in admissible form
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`sufficient to establish the existence of material issues of fact which requirea trial of the action”
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`(Alvarez v Prospect Hosp., 68 NY2d at 324; TownofKirkwood vRitter, 80 AD3d 944, 945-946 [3d
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`Dept 2011]).
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`In support ofits motion, plaintiff has submitted the affidavit of Sgt J. McCoy, a Deputy
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`Sheriff employed by the Schoharie County Sheriff’s Office. Therein, Sgt McCoystates that his
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`office received a Warrantof Eviction for 208 Bassler. Defendants werelisted on the Warrant, which
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`was signed by a Town of Middleburgh Justice and dated September 26, 2018. Hestates:
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`“From research I have conducted at the County Tax Office the property appears to
`be land locked. Forpractical purposesthere is a single point of access from Bassler
`Road to 208 Bassler Road which would allow vehicular travel (ie a moving truck).
`This entry point is blocked by a gate with numerous signs on it stating ‘no
`trespassing’ “Property under video surveillance’ amongst others. In front ofthe gate
`approximately 10 to 15 feet is a metal chain which appearsto be an attemptto further
`prevent vehicular access whichalso displays signage stating ‘no trespassing.’ The
`Road frontage along Bassler Roadin the property adjoining 208 Bassler [R]oad has
`been posted for trespass anda large portion ofit is fenced. To access 208 Bassler
`Road to perform the eviction the private property of another person would haveto
`be crossed. The property has been posted and personalproperty of its owner would
`have to be damagedin orderto accessthe only possible roadwayto the property to
`carry out the eviction. Extensive attempts were made atservice ofthe warrant which
`was only able to be affixed whena gate was left open on a single occasion. Without
`a Court Order directing otherwise at the present time I am unable to carry out the
`eviction due to a lack of legal access to the property” (McCoyAffidavit in Support
`of Motion,at 1-2).
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`Plaintiff has also submitted the affidavit of Daniel J. Card, an associate broker at A-1 REO
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`Services, LLC,plaintiff’s property manager. Therein, Mr. Cardstates that he hasvisited the subject
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`premises on manyoccasionsand has “observed that the premises do not have road access to conduct
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`theevictionandremovalofthepersonalpossessionsfromthepremises” (CardAffidavitinSupport
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`ofMotion {[ 2). He states that the only drivewayinto the premisesis through Lot 12, and defendants
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`haveinstalled a locked and chained metal gate to prevent road access. He states that a photograph
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`that he took of the Lot 12 entrance from Bassler Roadis attached to his affidavit. Mr. Card further
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`states:
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`“Lot 3 cannot be access through Lot 4 because, to the extent a narrow hiking path
`exists, even walking access is prevented by challenging terrain and overgrown trees
`and shrubbery. Moreover, even on Lot 4, the Defendants haveinstalled chains, gates
`and signage stating that trespassers will be shot” (id. { 4).
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`Hestates that a photographthat he took ofthe premises at Bassler Road and Lot4is attached to his
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`affidavit. Mr. Card states that, based uponthe foregoing,plaintiff seeks access to Lot 12 to conduct
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`the eviction.
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`Plaintiff has also submitted a number of exhibits in support of its motion, along with an
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`attorney affirmation. Plaintiffs evidence demonstrates that Fred and Robin obtainedtitle to 208
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`Bassler by deed dated September 7, 1995 from Edward G. Smith and Lynda G. Smith (see
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`Affirmation in Support of Motion, Exhibit D). Fred and Robin thereafter transferredtitle to 208
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`Basslerto defendants Troy Dufek and Laurie Dufek (hereinafter Troy and Laurie) by deed dated July
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`5, 2012 (see id., Exhibit E). As noted above,plaintiffobtainedtitle to 208 Bassler by referee’s deed
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`dated April 28, 2017 (see id., Exhibit C).
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`In addition, Fred and Robin obtainedtitle to Lot 12 by
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`deed dated December 20, 2006 from the co-administrators ofthe Estate ofEugenia Grace Smith (see
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`id., Exhibit F).
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`As an initial matter, defendants arguethat plaintiffs motion is defective and should not be
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`considered becauseplaintifffailed to include with its motion a statementofmaterialfacts as required
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`by Uniform Trial Court Rule 202.8-g (b). The Court, upon due consideration, declines to deny
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`plaintiffs motion onthis ground. The undisputed material facts and those whichthe parties dispute
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`are clear from the papers submitted. Moreover,the requirementthat a party moving for summary
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`judgment submit a statementof material factsis a relatively new requirementand,in an affirmation
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`in reply, plaintiff's counsel acknowledgesthat he overlooked the rule andstates that he “regrets [his]
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`unintentional noncompliance” (Reply Affirmation {| 29). Counsel has submitted a statement of
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`material facts with plaintiff's reply and requests that it be given nuncpro tunceffect. Counsel also
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`points to the merits of plaintiff's motion as a reasonto correct this irregularity. Based upon the
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`foregoing, the Court, upon good cause shown andin theinterests ofjustice, exercises its discretion
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`to waive the requirementsset forth in Uniform Trial Court Rule 202.8-g (see 22 NYCRR 202.1 [b]).
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`In order to avoid any prejudice to defendants, the Court will not consider the statement of material
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`facts submitted by plaintiff for thefirst time in reply, as defendants have not had the opportunity to
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`respond to such.
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`Turning to the merits, the Court, upon review, finds plaintiff's submissions insufficient to
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`demonstrate its entitlement to judgment as a matterof law on its Second or Third Causes of Action,
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`alleging that plaintiffis entitled to an easement by necessity or by implication, respectively. As to
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`an easement by necessity, “ ‘[t]he party asserting an easement by necessity bears the burden of
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`establishing by clear and convincing evidencethat there was a unity and subsequent separation of
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`title, and that at the time ofseverance an easementoverthe servient estate’s property was absolutely
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`necessary’ ” (Kheel v Molinari. 165 AD3d 1576, 1579 [3d Dept 2018], lv dismissed 32 NY3d 1194
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`[2019], quoting Simone v Heidelberg, 9 NY3d 177, 182 [2007]: see Stock v Ostrander, 233 AD2d
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`816, 817-818 [3d Dept 1996]). As to an easement by implication, “[g]enerally, an implied easement
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`arises upon severance of ownership when, duringthe unity of title, an apparently permanent and
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`obvious servitude was imposed on one part of an estate in favor of another part, which servitudeat
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`the time of severanceis in use and is reasonably necessary for the fair enjoyment of the other part
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`of the estate” (Bekkering v Christiana, 180 AD3d 1276, 1278 [3d Dept 2020] [internalcitation and
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`quotation marks omitted]; see Freeman v Walther, 110 AD3d 1312, 1315 [3d Dept 2013]). Both
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`types of easements require unity oftitle and subsequent severance.
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`Here, in support of both its easement by necessity and easement by implication claims,
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`plaintiff argues that, prior to the foreclosure, there was unity of title inasmuch as defendants owned
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`Lots 3, 4 and 12 and that a severance occurred whentitle to Lots 3 and 4 vested in plaintiff.
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`However, plaintiff's documentary evidence showsthat, at the time of the foreclosure, Troy and
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`Laurie held the title to Lots 3 and 4, and Fred and Robin heldthetitle to Lot 12 by separate deed.
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`Therefore, there was not unity oftitle at the time ofthe transferoftitle to plaintiff of Lots 3 and 4
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`and no severanceoftitle occurredat that time.
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`The Court notes that, although plaintiff does not argue the point, plaintiff's evidence
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`demonstrates that Fred and Robin held title to all three Lots between December 20, 2006 and July
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`5, 2012, although Lots 3 and 4 and Lot 12 were owned under separate deeds. Even assuming,
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`without deciding, that Fred and Robin’s common ownership during that time created a “unity of
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`title” such that the subsequent severance oftitle ~ in July 2012 whentitle to Lots 3 and 4 was
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`transferred to Troy and Laurie — would support a finding ofan implied easement(see Carlo v Lushia,
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`144 AD2d 211, 212 [3d Dept 1988]; Hossain v A to Z Props., 13 Mise 3d 1225 [A] [Sup Ct, Kings
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`County 2006]; compare Times Square Props., Inc. v Alhabb Realty Corp., 117 NYS2d 901, 903 [Sup
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`Ct, New York County 1952], affd 282 AD 1024 [1st Dept 1953}: but see Lew Beach Co. v Carlson,
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`77 AD3d 1127, 1129 [3d Dept 2010)), plaintiffhas not offered any evidencethat, in July 2012. an
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`easement over Lot 12 was absolutely necessary, as required to establish an easement bynecessity,
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`or that the driveway wasin use on Lot 12 and was reasonablynecessary for the fair enjoymentof Lot
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`3, as required to establish an easement by implication. Based on the foregoing, the Court findsthat
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`plaintiff has failed to meet its burden as to its Second and Third Causes of Action. For the same
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`reasons, plaintiff has failed to meet its burden as to its Fourth Cause of Action, which seeks a
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`declaratory judgmentfinally determining the rights and obligations ofthe parties with respect to the
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`property and Lot 12, as well as its First Cause of Action, which seeks a permanent injunction
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`enjoining defendants from interfering with its use and enjoymentofits property by erecting fences,
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`signs, cameras and locks which preventplaintiff from accessing its property.’
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`' The Court notes that the undisputed evidence in the record establishes that there is a locked gate on Lot4,
`accompanied by no trespassing signs, which is interfering with plaintiff's use and enjoyment of Lot 4 (see Card
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`In its present motion, plaintiff also seeks a preliminary injunction enjoining defendants,
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`during the pendency ofthis action, from interfering with its use and enjoymentof its property by
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`erecting fences, signs, cameras and locks which preventplaintiff from accessing Lot 3 via the
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`driveway on Lot 12. “The party seeking a preliminary injunction must demonstrate a probability of
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`success on the merits, danger ofirreparable injury in the absence of an injunction anda balance of
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`the equities in its favor” (Sardino v Scholet Family Trust, 192 AD3d 1433, 1434 [3d Dept 2021]
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`[internalcitations and quotation marks omitted]). Here, the Court findsthat, althoughit has not met
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`its high burden ofestablishing its entitlement to summaryjudgmentonits easement claims, plaintiff
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`has demonstrated a probability ofsuccess on the merits ofits claim to an easement on the driveway,
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`especially given the undisputed evidencethat the driveway on Lot 12 is the only way to accessthe
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`residence on Lot 3 by motorvehicle. In addition,plaintiffhas demonstrated a danger of irreparable
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`injury in the absence of an injunction,as it is presently unable to access the residence on Lot 3 via
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`motor vehicle and is unable to execute a WarrantofEviction removing defendantsfrom the property
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`as holdover tenants. Finally, the balance of the equities favors plaintiff.
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`Importantiy, defendants
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`have not disputed plaintiff's assertions that defendants are currently occupyingthe residence on Lot
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`3 as holdover tenants following plaintiff's foreclosure of their mortgage and are effectively
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`preventing plaintiff from executing the Warrant of Eviction. Defendant’s wrongful conductto the
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`prejudice of plaintiff favors granting the injunction, On the other hand, there is no apparent
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`prejudice to defendants’ rights arising from the injunction, and defendants have notidentified any.
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`As such, plaintiffs motion is granted inasmuch as it seeks a preliminary injunction barring
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`Affidavit in Support of Motion { 4; Affirmation in Support of Motion, Exhibit B). However, the Court received
`insufficient proof that defendants are responsible for the gate, signs and lock. Moreover,it is not clear from
`plaintiff's complaint or motion papers that they are seeking relief with respect to that interference. As such, the
`Court makes no findings as to any claim with respectto the locked gate located on Lot4.
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`defendants, during the pendency of this lawsuit, from preventing plaintiff from accessing Lot 3 via
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`the driveway on Lot 12. As defendants have not established that they would sustain any damages
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`ifthe injunction were improperly granted, the Court directs that plaintiffpost an undertakingin the
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`amount of $1.00 (see Sardino v Scholet Family Trust, 192 AD3d at 1435). Any matters raised in
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`plaintiff's motion not specifically addressed herein have been considered and foundto be without
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`merit.
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`Based upon the foregoing,itis
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`ORDEREDthatplaintiff's motion is granted only to the extent provided herein and is
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`otherwise denied; and it is further
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`ORDEREDthat, during the pendency of this action or until further order of the Court,
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`defendants and all persons acting in concert with them are enjoined from preventing plaintiff from
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`using the driveway on Lot 12 to access its property on Lot 3; andit is further
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`ORDEREDthat, within 20 days of the date of this Decision and Order, plaintiff shall post
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`an undertaking in the amount of $1.00; andit is further
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`ORDEREDthat all law enforcementofficers shall have the power, in their discretion, to
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`enforce this Order.
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`The foregoing constitutes the Decision and Orderof the Court.
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`SO ORDERED AND ADJUDGED
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`ENTER.
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`Dated: Albany, New York
`May F, 2022
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`amr A Ta
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`es H. Ferreira
`cting Justice of the Supreme Court
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`Papers Considered:
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`Notice of Motion, dated December 28, 2021;
`Affidavit in Support of Motion by Sgt J. McCoy, sworn to December 21, 2021:
`Affidavit in Support of Motion by Daniel J. Card, sworn to January 28, 2022;
`Affirmation in Support of Motion by Robert M. Link, Esq., dated February 2, 2022,
`with attached exhibits;
`Affirmation in Opposition by Charles Wallshein, Esq., dated February 9, 2022, with
`attached exhibits;
`Defendants’ Statement of Material Facts, dated February 9, 2022; and
`Reply Affirmation by Robert M. Link, Esq., dated February 14, 2022.
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`BwNM
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`a O
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