Opinion
Index No. 702528/2019 Motion Seq. No. 4
07-21-2020
135 SAPPHIRE LLC., Plaintiff(s), v. 137-25 SAPPHIRE STREET FAMILY LIMITED PARTNERSHIP, TRINCHESE CONSTRUCTION, INC., LOUIS- also known as LUIGI-TRINCHESE, JOHN DOE and JANE DOE, Defendant(s).
Unpublished Opinion
Motion Date: 1/7/20
JANICE A. TAYLOR, JUDGE
The following papers numbered 1-13 read on this motion by plaintiff 135 Sapphire LLC (135 Sapphire) for a preliminary injunction enjoining defendants 137-25 Sapphire Street Family Limited Partnership (137-125 Sapphire), Trinchese Construction, Inc., Louis a/k/a Luigi Trinchese (Trinchese), John Doe and Jane Doe from trespassing on plaintiff's property, and a cross-motion by defendants to dismiss the complaint pursuant to CPLR §3211 and/or §3212 and for a declaratory judgment entitling them to continue using disputed property owned by plaintiff.
| Papers Numbered | |
| Notice of Motion-Affirmation-Exhibits-Service.......... | 1 - 4 |
| Notice of Cross-Motion- Affirmation-Exhibits-Service... | 5 - 8 |
| Affirmation in Opposition-Exhibits-Service............. | 9 - 11 |
| Reply Affirmation-Service.............................. | 12 - 13 |
Upon the foregoing papers it is ordered that this motion and cross-motion are determined as follows:
Plaintiff 135 Sapphire LLC ("135 Sapphire") is sole owner of real property located at 135-27 Sapphire Street, Lot 42 in Howard Beach, New York ("the Subject Property"), which it acquired by deed dated July 11, 2016. Defendant 137-25 Sapphire Street Family Limited Partnership ("137-125 Sapphire") is the owner of real property located at 137-125 Sapphire Street, Lot 45 ("the Adjoining Property"). Defendant Trinchese Construction, Inc., Louis a/k/a Luigi Trinchese ("Trinchese") is a partner of the defendant entities. The parties dispute use and control of a strip of land running along the front portion of plaintiff's property, which defendants use to access their property.
Some discrepancy exists regarding whether this disputed strip of land is actually part of Lot 42, owned by plaintiff, or part of the adjacent Lot 15, which is also owned by plaintiff.
Plaintiff avers that shortly after purchasing the Subject Property, it learned that defendants were driving through the Subject Property, and asked Trinchese to stop defendants from doing so, including via communications between counsel for the parties. Plaintiff alleges that defendants repeatedly continued to trespass on its property long after the cease and desist deadline in their attorneys' communications. Plaintiff reports multiple instances of placing locks or other protective barriers to prevent entry to the Subject Property, which defendants then allegedly repeatedly broke or removed in order to access the disputed land. Plaintiff's complaint seeks declaratory and injunctive relief, alleging causes of action sounding in trespass and nuisance, while defendants asserted counterclaims based on adverse possession and seek a declaratory judgment in their answer.
The court turns first to defendants' cross-motion for dismissal and a declaratory judgment. Defendants claim they have acquired a "right to use" the disputed land through adverse possession. The court notes that defendants plead only a counterclaim for adverse possession, as pertaining to ownership of the disputed land, rather than usage thereof. Nevertheless, a party seeking to establish a claim of title to real property by adverse possession must prove, by clear and convincing evidence, that (1) the possession was hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of ten years (see Bursky v Gerratano, 184 A.D.3d 796 [2020]; Diaz v Mai Jin Yang, 148 A.D.3d 672 [2017]; CSC Acquisition-NY, Inc. v 404 County Rd. 39A, Inc., 96 A.D.3d 986, 987 [2012]). A party claiming adverse possession may establish possession for the statutory period by "tacking" the time that the party possessed the property onto the time that the party's predecessor adversely possessed the property (see Munroe v Cheyenne Realty, LLC, 131 A.D.3d 1141, 1142 [2015]; Stroem v Plackis, 96 A.D.3d 1040, 1042 [2012]).
For tacking to apply, a party must show that the party's predecessor intended to and actually turned over possession of the alleged adversely possessed land, along with the portion of land included in the deed (see Diaz, 148 A.D.3d at 674; Ram v Dann, 84 A.D.3d 1204 [2011]). Additionally, where the adverse possession is not founded upon a written instrument, the possessor must also establish that the disputed property was either "usually cultivated or improved" or "protected by a substantial inclosure" (Munroe, 131 A.D.3d at 1142; Goldschmidt v Ford Street, LLC, 58 A.D.3d 803 [2009]).
Here, defendants claim their statutory ten-year period began from July 5, 2004, when non-party Vincent Langona, one of the prior owners of the Adjoining Property, purchased it from Plaza Home LLC to be used by his son, John Langona, for his home improvement business. When Vincent Langona died in June 2011, John Langona, acting as Executor of his father's estate, conveyed the Adjoining Property to Crescent Bedrock Properties, Inc. ("Crescent"), an entity controlled by Trinchese, on December 12, 2012. On June 21, 2016, Crescent conveyed the Adjoining Property to 137-25 Sapphire, an entity also controlled by Trinchese.
Defendants submit, inter alia, the affidavits of non-party John Langona and defendant Trinchese, which each assert that defendants' and non-parties Vincent and John Langona's actions of driving though the disputed land belonging to plaintiff to access the Adjoining Property for over fourteen years from 2004 to the time this action was commenced in 2019, are sufficient to establish a right to use through adverse possession.In opposition to the cross-motion, plaintiff submits the affidavit of Farhad Bokhour ("Bokhour"), who owned the Subject Property at the time Vincent Langona purchased the Adjoining Property. Non-party Bokhour attested that in or about 2004, he agreed to give an individual named John, who either was or represented the new owner of Lot 45, permission to use part of Lot 15 in order to access Lot 45. Bokhour further stated that he informed plaintiff of such arrangement with defendants' predecessors in July 2016, when he sold his properties to Zirk Union Tpke LLC, an entity affiliated with plaintiff.
This court finds that the affidavit of non-party Bokhour raises triable issues regarding whether defendants' use of the disputed land was in fact permissive, rather than hostile and under claim of right (see Yee v Panousopoulos, 176 A.D.3d 1142, 1145 [2019]; Diaz, 148 A.D.3d at 674; Vitale v Witts, 93 A.D.3d 714 [2012]). Moreover, no evidence indicates that defendants' predecessors adversely possessed the disputed land and intended to and actually did transfer possession to defendants when transferring the deed to the Adjoining Property (see Ram, 84 A.D.3d 1204), such as necessary for a chain of title tacked together to satisfy the statutory period. Notably, defendants also have not demonstrated that they took any steps to cultivate, improve or enclose the disputed land (see Finger v 192 Grand Street Realty LLC, 184 A.D.3d 551 [2020]; Skyview Motel, LLC v Wald, 82 A.D.3d 1081, 1082 [2011]; Almeida v Wells, 74 A.D.3d 1256, 1258 [2010]). Thus, based on the record it cannot be said as a matter of law that defendants acquired the disputed land by adverse possession warranting judgment in its favor. Additionally, defendants did not demonstrate any grounds for dismissing plaintiff's causes of action for trespass or nuisance.
Turning to plaintiff's motion, a party seeking a preliminary injunction, must demonstrate, by clear and convincing evidence: (1 a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of equities in its favor (see Deutsch v Grunwald, 165 A.D.3d 1035 [2018]; 84-85 Gardens Owners Corp. v 84-12 35th Ave. Apt. Corp., 91 A.D.3d 702 [2012]; Brookhaven Baymen's Assn., Inc. v Town of Southampton, 85 A.D.3d 1074, 1078 [2011]). The purpose of a preliminary injunction is to preserve the status quo until a decision is reached on the merits (see Icy Splash Food & Beverage, Inc. v Henckel, 14 A.D.3d 595, 596 [2005]).
Here, the only injury plaintiff alleges is the vandalism resulting from defendants' repeated attempts to break plaintiff's locks and other barriers meant to keep defendants off its property. While possibly demonstrative of trespass and/or nuisance, such damage may be sufficiently compensated by monetary damages, particularly in light of the fact that plaintiff's property is a vacant lot (see Swartz v Swartz, 145 Ad3d 818, 822 [2016]; International Shoppes, Inc. v At the Airport, LLC, 131 A.D.3d 926, 938 [2015]). Thus, the court finds that plaintiff fails to demonstrate that it would suffer irreparable injury in the absence of a preliminary injunction, and no injunctive relief is warranted to maintain the status quo herein (see Rowland v Dushin, 82 A.D.3d 738 [2011]; cf. Deutsch, 165 A.D.3d 1035).The court has considered the parties' remaining contentions and finds them unavailing. Accordingly, plaintiff's motion and defendants' cross-motion are both denied.