FILED: ORANGE COUNTY CLERK 04/18/ :39 PM

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE WILL ISNADY, -against- Plaintiff; WALDEN PRESERVATION L.P. cl/b/a THE CEDARS, VILLAGE OF WALDEN and THE VILLAGE OF WALDEN POLICE DEPARTMENT, Defendants. x x Index No. EF AFFIRMATION IN OPPOSITION TO PLAINTIFF S CROSS-MOTION AND IN REPLY ON CROSS-MOTION TO DISMISS BRIAN P. MCLAUGHLIN, an attorney duly licensed to practice law in the State of New York and an associate of the firm London Fischer LLP, attorneys for WALDEN PRESERVATION L.P. d/b a THE CEDARS ( THE CEDARS ), Defendant, being fully familiar with the facts of this lawsuit, makes the following affirmation under the penalties of perjury: 1. This Affirmation, together with the Affidavit of Maria Murdie, and the attached Memorandum of Law, is submitted in further support of THE CEDARS Cross-Motion to dismiss Plaintiff WILL ISNADY s ( Plaintiff ) Complaint for lack of standing and failure to state a cause of action, and in opposition to that branch of Plaintiff s Cross-Motion seeking leave to serve an Amended Complaint. 2. Plaintiffs cross-motion papers have failed to disturb the two central points entitling THE CEDARS to dismissal of the Complaint: There is no fi4ç controversy regarding Plaintiff s use of the fire lane upon which a declaratory judgment can be made. Plaintiff has no legal interest in the fire lane at issue and thus lacks standing to bring any cause of action regarding his rights to same. 1 of 8

2 Given this failure to rebut the prima facie showing made on these issues in the THE CEDARS Cross-Motion to dismiss, THE CEDARS are entitled to dismissal of Plaintiffs Complaint. POINT I PLAINTIFF HAS FAILED TO ESTABLISH A BONA FIDE CONTROVERSY 3. Despite Plaintiff s attempts to imbue this case with an illusion of substance by filing two memoranda of law brimming with irrelevant case law, Plaintiffs Complaint ultimately boils down to a Plaintiff who is upset that he has been issued parking tickets for illegally parking in a fire lane. 4. It should be noted from the outset, then, that Plaintiff s claimed right to p~jç on Cliff Street is conspicuously absent from his papers opposing THE CEDARS motion to dismiss, despite the fact that this is a claim alleged in his Complaint. See Exhibit A to VILLAGE OF WALDEN s motion to dismiss at 28. Instead, Plaintiff s papers are solely concerned with his crossing the Cliff Street fire lane to access the parking area located behind his building. While this was acknowledged in THE CEDARS initial motion papers, it is reiterated here for emphasis: THE CEDARS has never taken any action to obstruct impede or in any way interfere with Plaintiff s crossing the Cliff Street fire lane to travel between the parking area located behind his building and the public roads. While Plaintiff s use of Cliff Street in this way is not based on any right or legal interest he has in Cliff Street, THE CEDARS has never interfered with it. Accordingly, there is no controversy here and Plaintiff s Complaint does not set forth a cause of action that is properly before the Court. 5. Plaintiff s insistence that his crossing of Cliff Street is in dispute arises from his apparent misinterpretation of THE CEDARS letter dated March 18, 2016, which is the The Cliff Street fire lane provides one of two accesses to the parking area behind Plaintiffs building. The other access is from West Main Street. N 2 2 of 8

3 sole evidence relied upon in his efforts to create a controversy where none exists. This letter does not refer to Plaintiff s use of the fire lane abutting his property, but rather his personal trespass onto that section of THE CEDARS beyond the gate at the end of the fire lane (as pictured below) where the Cedars apartment complex is located. This is indicated by the specific addreses listed in the letter, which does not touch upon the fire lane section at all. The letter s author, Maria Murdie, property manager of THE CEDARS, confirms in her attached Affidavit that the March 18th letter does not in any way pertain to the fire lane or Plaintiff s travel upon same. Accordingly, Plaintiff has failed to put forth a bona tide controversy and his Complaint must be dismissed. 3 of 8

4 POINT II PLAINTIFF HAS NO PROPERTY INTEREST IN CLIFF STREET 6. Plaintiff lacks standing as his Complaint is wholly concerned with his rights concerning the Cliff Street fire lane, a piece of property in which he has no cognizable legal interest. 7. It is undisputed that THE CEDARS is the~ owner of the Cliff Street fire lane. See Plaintiff s Memorandum of Law in Support of his Cross-Motion at 7. Nor is it disputed that Defendant VILLAGE OF WALDEN is the government authority that established that portion of Cliff Street as a fire lane. See Exhibit A attached to VILLAGE OF WALDEN s Motion to Dismiss at Although Plaintiff s Complaint alleges he possesses a recorded easement with respect to the fire lane, and this language is parroted in his motion papers, the language in the Indenture Plaintiff relies upon does not confer an easement at all; it is merely a provision regarding physical demarcations of the property line between two parcels, neither of which THE CEDARS owns. See Schedule B to Exhibit 1 to Exhibit A attached to VILLAGE OF WALDEN s Motion to Dismiss, at (b)(3). Moreover, Plaintiff conspicuously omits the first sentence of that provision, which states The roadway from West Main Street [referring to the fire lane] shall be one way in and for emergency vehicles only. Id. (emphasis added) 9. Furthermore, the Indenture convey several easements, including easements by necessity, but notably, neither Plaintiff, nor his parcel located at 154 W. Main Street is a recipient of either. Id at 12th page of Indenture. 10. Indeed, as confirmed by Land Surveyor John Atzl, who has personal knowledge of the property at issue, based upon the surveys of the property he performed in 4 of 8

5 2010 and 2015, as well as his review of all relevant documents concerning the property no easement exists between Plaintiff and THE CEDARS. See Affidavit of John Atzl, attached to THE CEDARS initial motion papers. 11. Further, Plaintiff does not even have an easement by necessity pertaining to the fire lane. As mentioned above, although the Indenture Plaintiff relies upon clearly contemplated which parcels were entitled to easements by necessity when THE CEDARS property became privately owned, no such easement was conferred upon Plaintiff s property. This is likely because the fire lane is not Plaintiffs only available means of accessing the parking area behind his building. As illustrated below, Plaintiff (whose white car is seen in the parking area behind his building) could also reach West Main Street by driving around the rear of the neighboring storefront..0 S. S.~? 4, 1.7 V., Vt 7~. t West Main Street. 12. That said, while Plaintiff does not have an easement by necessity in the fire lane, THE CEDARS has not taken any action to interfere with his momentary travel upon the lane to access the parking area in the rear of Plaintiffs building, nor is THE CEDARS aware of S 5 of 8

6 the degree to which Plaintiff crosses the fire lane, as opposed to accessing the parking area behind his building from West Main Street. 13. Finally, Plaintiff s attempts to extend his causes of action to include a claim for prescriptive easement or adverse possession over the fire lane are devoid of merit. As Plaintiff properly recognizes, a prescriptive easement requires that Plaintiff s use of the property at issue must be uninterrupted, hostile and adverse for the prescribed period. Here, the Indenture that Plaintiff relies upon explicitly states The roadway from West Main Street [referring to the fire lane] shall be one way in and for emergency vehicles only. See Schedule B to Exhibit 1 to Exhibit A attached to VILLAGE OF WALDEN s Motion to Dismiss, at (b)(3). Accordingly, from the time in 1978 when the Cliff Street fire lane was converted from a public street into private property, it was designated as a fire lane. Therefore any use Plaintiff and/or his predecessors in interest made of the fire lane since 1978 has been interrupted, as it has been subject to all laws affecting fire lanes. 14. As for Plaintiff s predecessors in interest to the 154 W. Main Street property, Plaintiff fails to even identi1~ any such individuals, much less make any showing of the uses they may have made of Cliff Street, if any, beyond his speculative allegation that they must have also used it to access the parking lot located behind his building. Without any showing confirming use by these unidentified individuals, the scope of the use, or that such use was uninterrupted, Plaintiff cannot use the speculated activities of his predecessors in interest as a predicate for claiming a prescriptive easement or adverse possession over Cliff Street. 15. To the extent Plaintiff s use of Cliff Street is limited to crossing the fire lane to access the parking area behind his building, THE CEDARS has taken no action to impede 6 of 8

7 it. Accordingly, such use is not hostile or adverse in nature, but permissive, and therefore not a proper predicate for a prescriptive easement or adverse possession. POINT III PLAINTIFF S PROPOSED AMENDEMENTS TO HIS COMPLAINT ARE PREJUDICIAL AND DEVOID OF MERIT 16. Plaintiff s cross-motion seeking the Court s leave to amend his Complaint should be denied as Plaintiffs proposed amendments do not meet the standard required for such leave. That is, the proposed amendments would be prejudicial to Defendants, as well as being palpably insufficient and patently devoid of merit. 17. As Plaintiff properly recognizes, leave to amend a pleading should only be granted in the absence of prejudice. Here, then, leave must not be granted, as allowing Plaintiff to assert new causes of action when all Defendants have already filed motions to dismiss each of his initial causes of action, would clearly be prejudicial to Defendants. 18. Even if the Court does not find that such prejudice exists, leave should still not be granted as Plaintiffs proposed amendments to his causes of action against THE CEDARS adding claims to quiet title with regards to a prescriptive easement, and a claim for adverse possession are palpably insufficient and patently devoid of merit, as set forth in the previous section. WHEREFORE, THE CEDARS. respectfiully requests this Court grant its Cross Motion in its entirety, dismissing Plaintiffs Complaint in its entirety against THE CEDARS, and deny Plaintiff s Cross-Motion in its entirety, as well as directing such other and further relief as this Court deems just and proper. Dated: New York, New York N 7 7 of 8

8 Aprill3,2017 7/ By: ~i-. McLaughlin Attorneys for Defendant WALDEN PRESERVATION L.P. d/b a THE CEDARS 59 Maiden Lane New York, New York (212) TO: LAW OFFICES OF BARRY D. HABERMAN, ESQ. Barry D. Haberman, Esq. Attorneys for Plaint(if 354 South Main Street, Suite 404 New City, New York (845) WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Attorneysfor Defendants VILLAGE OF WALDEN and VILLAGE OF WALDEN POLICE DEPARTMENT 1133 Westchester Avenue White Plains, NY (914) of 8