Opinion
Index No. 608441/2019
05-15-2020
572 WALT WHITMAN RD. ASSOCIATES, LLC, Plaintiff, v. WHITMAN CAPITAL LLC and Superior Management, Inc., Defendants.
PLAINTIFF'S ATTORNEY: SINNREICH KOSAKOFF & MESSINA, 267 CARELTON AVE, 3RD FLOOR, CENTRAL ISLIP, NY 11722. DEFENDANTS' ATTORNEYS: YAN MARGOLIN, ESQ., 315 WEST 36TH STREET, NEW YORK, NY 10018.
PLAINTIFF'S ATTORNEY: SINNREICH KOSAKOFF & MESSINA, 267 CARELTON AVE, 3RD FLOOR, CENTRAL ISLIP, NY 11722.
DEFENDANTS' ATTORNEYS: YAN MARGOLIN, ESQ., 315 WEST 36TH STREET, NEW YORK, NY 10018.
Sanford Neil Berland, J.
Upon reading and filing of the following papers in this matter: (1) Order to Show Cause with Temporary Restraining Order by Plaintiff (mot. seq. #001), filed May 2, 2019, and supporting papers; (2) Affirmation in Opposition by defendants, filed May 7, 2019, and supporting papers; (3) Supplemental Affirmation by Plaintiff, filed May 7, 2019, and supporting papers; (4) an evidentiary hearing having been held, and witnesses and counsel having been heard on May 8, 2019; (5) Notice of Motion by defendants (mot. seq. #002), filed July 8, 2019, and supporting papers; (6) Affirmation in Opposition by plaintiff, filed August 6, 2019; and (7) Reply Affirmation by defendant, filed August 19, 2019, and supporting papers;
And upon due deliberation, it is
ORDERED that defendants' motion to dismiss the first three causes of action of the amended complaint pursuant to CPLR 3211[a] and to vacate the temporary restraining order previously entered herein is denied; and it is further
ORDERED that plaintiff's motion for a preliminary injunction, pursuant to CPLR 6311, is granted to the extent indicated herein; and it is further
ORDERED that pending the final determination of this action, defendants are enjoined from obstructing or otherwise preventing plaintiff and its employees from erecting a fence; and it is further
ORDERED that plaintiff shall file with the Suffolk County Clerk an undertaking in the amount of $50,000.00 pursuant to CPLR 6312[b] to abide the outcome of this action and without prejudice to an application by any party to alter or modify said undertaking and/or the amount thereof.
This is an action for a declaratory judgment pursuant to Article 15 of the Real Property Actions and Proceedings Law and for other relief. Plaintiff is the eponymously named owner of the commercial premises located at 572 Walt Whitman Road in Melville, in the Town of Huntington (the "572 property"). Plaintiff seeks, among other things, a declaratory judgment that its premises is benefited by a non-exclusive prescriptive easement over a 24-foot-wide, 331-foot-long strip of 560 Walt Whitman Road (the "560 property"), the adjoining property — currently a driveway and a portion of the 560 property's rear parking lot - immediately adjacent to and running the length of the common property line of the two parcels, allowing it and its tenants, employees, clients, visitors, vendors and emergency personnel to drive their vehicles into and out of the portions of the 572 parcel that lie behind that parcel's main building.
According to its original verified complaint, plaintiff and its predecessor and related entities have occupied the 572 property — a 60-foot wide, 350-foot long parcel — since the 1960s, and throughout that time, they have used part of the 560 property, among other things to access the rear portions of their own property, to provide additional entry and exit points and maneuvering space for their own parking lot, to provide additional parking space for tenants, employees, clients and visitors, and to afford vehicular access from their property — which otherwise has vehicular access only onto Amityville Road — directly onto Walt Whitman Road. After the court granted plaintiff's application for a temporary restraining order (May 2, 2019, Quinlan, J.), temporarily restraining the defendants from obstructing or interfering with the plaintiff's use of the claimed easement, plaintiff amended its complaint to allege in the first instance an easement by necessity, and in the alternative, an easement by prescription, over the same strip of the 560 property. The matter is now before the court on the plaintiff's motion for a preliminary injunction, which defendants oppose on the grounds that plaintiff has not demonstrated that it is likely to succeed in this action on the merits or that it will suffer irreparable harm if the relief it is seeking is not granted, and on the defendants' motion to dismiss the first three causes of action of the amended complaint and for a declaratory judgment that no easement exists.
Background .
Plaintiff alleges that it or its predecessor and related companies have continuously occupied the 572 property since the early 1960s and that since at least January of 1961, they and their employees have used the adjoining strip of land over which they claim an easement "for various purposes, including but not limited to, ingress, egress, loading and unloading of trucks, emergency vehicle access, access to major roadways, access to Plaintiff's parking area and access to the rear of [their] property." Plaintiff claims that the asserted easement "has been absolutely necessary [to] the normal, reasonable and beneficial use and development of the Plaintiff's Parcel," that the easement is necessary in order for emergency and other large vehicles to have reasonable access to and egress from their premises, and that their use of the easement has been "adverse, hostile, open, and notorious, continuous and uninterrupted" essentially from the time they first occupied the 572 property. Defendants, which acquired title to the 560 property by referee's deed on November 6, 2013, dispute plaintiff's assertions, contending that as plaintiff or its related entities were for many years, and until January 2019, commercial tenants of the 560 premises, occupying a significant amount of office space there under leases that explicitly granted them exclusive use of a substantial number of parking spaces in the rear of the premises and were also beneficiaries of a 1982 easement at will that allowed a portion of the strip of land over which plaintiff now claims an access easement as a partially fenced-in parking area for the 572 property, any claim that plaintiff's use of the strip of land for vehicular access to the rear of the 572 property has been adverse and hostile is unsustainable. Defendants further contend that there is no genuine necessity for the claimed easement because the existing driveway for the 572 property, along its southern boundary and entering onto Amityville Road to the southeast of its conjunction with Walt Whitman Road, is sufficiently wide to accommodate emergency and other large vehicles and that there is also enough room on that property, to the north of the rear buildings, to allow refuse trucks to service the receptacles that are kept behind those buildings. Defendants maintain that plaintiff, through this action, is attempting to maintain the convenience of additional access to its property and the benefit of additional parking spaces available for its use that it enjoyed when it was a tenant of the 560 property, but without paying any rent for the convenience and benefit of such additional parking spaces.
The record developed thus far shows that the two properties are the result of a 46-lot subdivision plan that was filed in 1945. The property currently known as 572 Walt Whitman Road was Lot 9 in the subdivision plan, abutting, at its eastern edge, the confluence of what was then "Old Huntington-Melville Road" and Walt Whitman Road (parenthetically labelled "Huntington-Amityville Road"), and the two lots directly to the north, Lots 10 and 11, also abutting Walt Whitman Road, together became 560 Walt Whitman Road. According to the 1945 subdivision plan, a portion of each of these lots, along with a number of others in the subdivision, was located in the "Business District," the remainder in a "Residence E" district. Robert G. Nelson, Jr., a member of plaintiff, testified that according to site history records he obtained from the Town of Huntington pursuant to a Freedom of Information Law request, in the 1950s, a frame residence was moved from the front portion of the 572 property to the rear residential portion of the parcel, and subsequently, a commercial structure was erected by JARTH Construction Corporation, which had acquired the property in approximately 1957, near the front of the property. JARTH was both plaintiff's predecessor in title to the 572 property and a "related entity," and, according to Mr. Nelson, plaintiff and its related entities have owned and occupied the 572 property continuously since that time and Walt Whitman has been the "main access point" to the property for "nearly 60 years." Mr. Nelson, whose father was one of the original principals of the property's owners, testified that although he first began working professionally at the site beginning in 1979, his familiarity with it dates back to the 1960s and that he "grew up" there.
According to a supplemental affidavit sworn to by Mr. Nelson on May 7, 2019 and filed by plaintiff in further support of its motion for a preliminary injunction, although under the original 1945 subdivision plan, the 572 property "was intended to be beneficially and normally developed at least partially for commercial use," the original conveyance of that lot "left 572 Walt Whitman insufficient for its intended and beneficial commercial development without access to and use of a portion of the neighboring Defendants' Parcel, conveyed to Defendants' predecessor by a common grantor," as a result of which, according to Nelson, the claimed easement "has been absolutely necessary [to] the normal, reasonable and beneficial use and development of" the 572 property. Nelson further testified that as currently configured, the parking areas on the 572 property accommodate fewer automobiles — thirty-three than the Huntington Town Code now requires — approximately 49 — and that if the defendants are allowed to prevent access and ingress over their property, useable parking spaces on the 572 property would be reduced by a third; that there would be insufficient room for emergency and other larger vehicles to turn around, forcing them to back out through the 572 buildings comparatively narrow driveway; that it would be extremely difficult, if not impossible, for the property's refuse vendor to access the site's dumpster[s], currently kept behind the rear buildings, which would result in the dumpsters having to be kept elsewhere on the property, thereby further reducing available space for parking and for vehicle maneuvering; and that having only one, single-lane driveway for ingress into and egress from the property, exclusively onto Amityville Road near its intersection with Walt Whitman Road/Route 110, a heavily trafficked state highway, would raise serious traffic congestion and safety concerns.
In support of their motion to dismiss the first three causes of action of the amended complaint, which added a claim for easement by necessity to the original claim of a prescriptive easement and for corresponding declaratory and injunctive relief, the defendants argue, among other things, that documentary evidence shows that no easement by necessity was required at the time the lots were separated, that the grounds for an easement by necessity are not present and that both easement claims are contradicted by the existence of a recorded 1982 agreement between the then owner of the 560 property and plaintiff's predecessor in interest that granted a license, terminable at will, to the latter to use a fenced-in portion of the 560 property, abutting the 572 property and part of the same area over which plaintiff now claims an easement, for parking purposes only and acknowledged the 560 owner's ownership of that portion of the property (the "1982 license agreement"). For the reasons that follow, defendants' motion is denied and plaintiff's motion for a preliminary injunction is granted.
Defendants' motion to dismiss .
Defendants move to dismiss the first cause action of the amended complaint - for an easement by necessity — on the grounds that there was no necessity for the easement at the time the lots were severed, there is no necessity for the easement now and the claim for an easement by necessity is in any event precluded by the 1982 license agreement. Defendants move to dismiss the second cause of action, for a prescriptive easement, on the grounds that this claim is also precluded by the 1982 license agreement as well as by the fact that plaintiff or its predecessor entities were for some period of time and until recently tenants of the building on the 560 property and therefore their employees used both the Walt Whitman Road driveway and the rear parking area by permission. The motion to dismiss the third cause of action, for a declaratory judgment of plaintiff's claimed easement rights, is based upon the ground that plaintiff can have no right to the declaratory relief it is seeking if its easements claims are dismissed.
"A motion pursuant to CPLR 3211[a][1] to dismiss based on documentary evidence may be appropriately granted ‘only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ " ( YDRA, LLC v. Mitchell , 123 AD3d 1113, 1113, 1 NYS3d 206, quoting Goshen v. Mutual Life Ins. Co. of NY , 98 NY2d 314, 326, 746 NYS2d 858, 774 NE2d 1190 ; see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc. , 20 NY3d 59, 63, 956 NYS2d 439, 980 NE2d 487 ; Tooma v. Grossbarth , 121 AD3d 1093, 1094-1095, 995 NYS2d 593 ; Biro v. Roth ,121 AD3d 733, 734, 994 NYS2d 168 ). "In order for evidence submitted under a CPLR 3211(a)(1) motion to qualify as ‘documentary evidence,’ it must be ‘unambiguous, authentic, and undeniable’ " ( Cives Corp. v. George A. Fuller Co., Inc. , 97 AD3d 713, 714, 948 NYS2d 658, quoting Granada Condominium III Assn. v. Palomino , 78 AD3d 996, 996-997, 913 NYS2d 668 ; see Treeline 1 OCR, LLC v. Nassau County Indus. Dev. Agency , 82 AD3d 748, 752, 918 NYS2d 128 ).
"On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (see Yu Chen v. Kupoint (USA) Corp. , 160 AD3d 787, 788 [2d Dept 2018] ; Leon v. Martinez , 84 NY2d 83, 87 [1994] ). A motion to dismiss made pursuant to CPLR 3211 (a) (7) must fail if, upon taking all the facts alleged in the complaint as true and according them every possible inference favorable to the plaintiff, "the complaint states in some recognizable form any cause of action known to our law" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , 38 AD3d 34, 38 [2006] ; see Sinensky v. Rokowsky , 22 AD3d 563,564, 802 NYS2d 491 [2d Dept. 2005] quoting Leon v. Martinez, 84 NY2d 83,87-88, 614 NYS2d 972 [1994] ; Miglino v. Bally Total Fitness of Greater NY, Inc. , 20 NY3d 342, 351, 961 NYS2d 364 [2013] ); Simos v. Vic-Armen Realty, LLC , 92 AD3d 760, 938 NYS2d 609 [2d Dept. 2012] ). If "evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" ( Guggenheimer v. Ginzburg , 43 NY2d 268, 275, 401 NYS2d 182 [1977] ; see "John Doe 1" v. Board of Educ. of Greenport Union Free Sch. Dist. , 100 AD3d 703, 705, 955 NYS2d 600, 287 Ed. Law Rep. 524 [2d Dept 2012] ).
Easement by necessity — First Cause of Action .
With respect to the first prong of its motion, to dismiss the first cause of action of plaintiff's amended complaint, which seeks the declaration of an easement by necessity, the core of defendants' argument is that because at the time the ownership of the lots that became the 560 property and the 572 property was separated, in 1945, the land evidently was undeveloped, and no necessity existed for an easement across the 560 property to reach the rear of the 572 property, which had — and has — frontage on both Walt Whitman Road and Amityville Road. Thus, to the extent it was the subsequent erection of the building on the 572 property that created the claimed necessity, the burden of providing such access cannot be retroactively imposed upon the 560 property. In addition, the defendants cite the 1982 license agreement as evidence that the plaintiff and its predecessor in interest recognized that their use of the 560 property for their vehicles was permissive and subject to the preeminent right of that property's owner to allow, or disallow, such use by them to continue.
To the extent the defendants seek to rely on the 1982 license agreement as foreclosing a claim by plaintiff of an easement by necessity over the 560 property, their reliance, at least at this juncture, is misplaced. By its terms, that agreement addresses only the use of a portion of the 560 property — designated in the agreement as "parcel A" — by the then owner of the 572 property, JARTH Construction Corporation ("JARTH"), as an area for parking cars; the agreement allows the latter a license to do so, revocable at any time, and the latter acknowledges both the former's fee ownership of the area and that neither the past nor the continuing fencing in and use of parcel A by it for the parking of cars will result in the 572 property owner retaining or acquiring "any legal or equitable ownership" of parcel A. The agreement is silent as to access, by easement or otherwise, to any portion of the 572 property, from Walt Whitman Road or otherwise, across the 560 property. Notably, while the defendants would read that silence as excluding other property-related interests as between the parties to the agreement, the agreement contains nothing, whether explicitly or by implication, to suggest that it was intended to integrate and determine anything other than the nature and consequences, vel non , of JARTH's use of parcel A as a parking area (see, e.g. , Mau v. Schusler , 124 AD3d 1292, 1294-95 [4th Dept 2015] (with respect to interpreting an express easement, " Real Property Law § 240(3) provides in relevant part that ‘[e]very instrument creating [or] transferring ... an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.’ ‘The ‘intent’ to which the statute refers is the objective intent of the parties as manifested by the language of the deed; unless the deed is ambiguous, evidence of unexpressed, subjective intentions of the parties is irrelevant’ ( Margetin v. Jewett , 78 AD3d 1486, 1488, 912 N.Y.S.2d 356 )"). Notably, too, the area encompassed by "parcel A" adjoins the rear, western-most common boundary of the two properties, some two hundred feet, or more, from the point where the easement claimed by plaintiff enters onto Walt Whitman Road after passing through the narrowing space between the main building on the 572 property, which abuts that part of the property's shared boundary with the 560 property, and the building on the latter property, at least facially contradicting defendant's argument that plaintiff's claims for an easement by necessity or by prescription is precluded by an express easement covering the same property.
The court notes that among plaintiff's objections to the submission to and consideration by the court of the 1982 license agreement is a claimed lack of proper authentication. Plaintiff also disagrees with the defendants' contention that the 1982 document can be interpreted as constituting an express easement, which runs with the land, rather than as conferring a mere license between the parties to it (see, e.g. , Todd v. Krolick , 96 AD2d 695, 696 [3d Dept 1983], affd , 62 NY2d 836 [1984] ). In view of the court's current decision, it is unnecessary to decide either issue at this time.
Nor has plaintiff failed adequately to state a claim for easement by necessity. The elements of a claim for an easement by necessity, which must be proved by the party asserting it by clear and convincing evidence, is that there was a unity and subsequent separation of title and that at the time of severance, an easement over the servient estate's property was absolutely necessary ( Simone v. Heidelberg , 9 NY3d 177, 182, 847 NYS2d 511 [2007] ; Smiley Realty of Brooklyn, LLC v. Excello Film Pak, Inc. , 67 AD3d 891, 892, 889 NYS2d 229 [2d Dept 2009] ). " ‘[T]he necessity must exist in fact and not as a mere convenience' ( Heyman v. Biggs , 223 NY 118, 126 [1918] ) and must be indispensable to the reasonable use for the adjacent property" ( Simone v. Heidelberg , supra at 182); Asche v. Land & Bldg. known as 64-29 232nd St. , 12 AD3d 386, 387, 784 NYS2d 577 [2d Dept 2004] ), citing Four S Realty Co. v. Dynko , 210 AD2d 622, 623, 619 NYS2d 855 [3d Dept 1994] ).
Although the facts remain to be developed, plaintiff alleges, in its amended complaint, that the two parcels that ultimately became the 560 property and the 572 property were conveyed by a common grantor to the current parties' predecessors in interest, that the 572 property was partially zoned for commercial development and use and was intended by the common grantor to be so develop and used, and, further, that
41. At the time of the conveyance by the common grantor, use of the Easement was a necessity for the intended commercial development of the Plaintiff's Parcel.
42. Since the time of the conveyance by the common grantor, the necessity has existed in fact and the easement has been indispensable to the normal, reasonable and beneficial use and development of the Plaintiff's Parcel.
43. Since the time of the conveyance by the common grantor, the necessity has existed in fact and the easement has been absolutely necessary [sic] the normal, reasonable and beneficial use and development of the Plaintiff's Parcel.
Although the defendants seek to question the validity of plaintiff's allegations of necessity, arguing both that the claimed necessity was not pre-existing, but resulted from how the owners of the 572 property chose to develop the parcel, and that the direct access the parcel has onto Amityville Road is sufficient to obviate the alleged necessity for Walt Whitman road access, those are factual issues and issue has yet to be joined. At this juncture, however, the court is required to "'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" ( Sinensky v. Rokowsky , 22 AD3d 563,564, 802 NYS2d 491 [2d Dept. 2005] quoting Leon v. Martinez, 84 NY2d 83,87-88, 614 NYS2d 972 [1994] ; Miglino v. Bally Total Fitness of Greater NY, Inc. , 20 NY3d 342, 351, 961 NYS2d 364 [2013] ); Simos v. Vic-Armen Realty, LLC , 92 AD3d 760, 938 NYS2d 609 [2d Dept. 2012] ).
Prescriptive easement — Second Cause of Action .
The elements of an easement by prescription are that the plaintiff's use was "hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years" ( Masucci v. DeLuca , 97 AD3d 550, 551 [2012] ; see Old Town Tree Farm, Inc. v. Long Is. Power Auth. , 101 AD3d 692, 692 [2012] ; Garden Homes Mobile Home Park Co. LP v. Patel , 100 AD3d 688, 689 [2012] ). "The elements of a prescriptive easement must be established by clear and convincing evidence" ( CSC Acquisition-NY, Inc. v. 404 County Rd. 39A, Inc. , 96 AD3d 986, 987 [2012] ; see Patel v. Garden Homes Mgt. Corp. , 156 AD3d 807 [2017] ; Vitiello v. Merwin , 87 AD3d 632, 633 [2011] ). "In general, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive" ( Carty v. Goodwin , 150 AD3d 812, 812 [2017] ; see Colin Realty Co., LLC v. Manhasset Pizza, LLC , 137 AD3d 838, 840 [2016] ; Ducasse v. D'Alonzo , 100 AD3d 953, 954 [2012] )" ( Ciringione v. Ryan, 162 AD3d 634, 634-35 [2d Dept 2018] ). However,
Although for a plaintiff to acquire an easement by prescription, it must be shown that the plaintiff's use of the burdened property is hostile (see Glennon v. Mayo , 221 AD2d 504, 505, 633 N.Y.S.2d 400 ) and was not "permitted as a matter of willing accord and neighborly accommodation" ( 315 Main St. Poughkeepsie, LLC v. WA 319 Main, LLC , 62 AD3d at 691, 878 N.Y.S.2d 193 ; see Colin Realty Co., LLC v. Manhasset Pizza, LLC , 137 AD3d at 840, 26 N.Y.S.3d 606 ), "[h]ostility does not require a showing of enmity or specific acts of hostility.... All that is required is a showing that the [use] constitutes an actual invasion of or infringement upon the owner's rights" ( Mispalleleh Beis Medresh Torah Vadaas v. Yeshivath Kehilath Yakov, Inc. , 89 AD3d 700, 701, 933 N.Y.S.2d 291 [internal quotation marks omitted] ).
Aboulissan v. Kingsland 79, LLC , 179 AD3d 878, 879-80 [2d Dept 2020] ).
Plaintiff has adequately alleged the elements of a prescriptive easement. Thus, in the second cause of action of the amended complaint, plaintiff alleges that
49. Plaintiff has made open and notorious, continuous and uninterrupted use of the Easement, for at least 57 years.
50. As such, Plaintiff has made use of the easement well in excess of the 10-year prescriptive period.
51. Plaintiff's open and notorious, continuous and uninterrupted use of the Easement has at all times been adverse and hostile to the interests of Defendants or Defendants' predecessors in title to 560 Walt Whitman.
In addition to citing the 1982 license agreement, which is discussed at some length above, defendants proffer lease agreements between the parties' predecessors in interest, or related entities, under which plaintiff or its predecessor occupied office space in the building on the 560 property and were allocated the use of a stated number of parking spaces behind that building. None of those leases by their terms, however, address matters of access to either property from Walt Whitman Road and none of them dates back sufficiently far in time to contradict plaintiff's claim that its use of the claimed easement began "at least" 57 years ago. Indeed, to the extent extrinsic matter is to be considered on the defendants' motion, Mr. Nelson testified that the plaintiff's or its predecessors' first use of office space on the 560 property did not begin until 1996 or 1997, long after plaintiff claims its prescriptive easement had been established. Again, a motion to dismiss pursuant to CPLR 3211 (a) (7) must be denied if, upon taking all the facts alleged in the complaint as true and according them every possible inference favorable to the plaintiff, "the complaint states in some recognizable form any cause of action known to our law" ( Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP , supra , 38 AD3d at 38 ). So measured, the amended complaint adequately states a claim for a prescriptive easement, and nothing tendered by the defendants dictates a different conclusion.
Accordingly, defendants' motion to dismiss the second cause of action of the amended complaint is denied. As their motions to dismiss the first two causes of action are denied, their motion to dismiss the third cause of action, for a declaratory judgment, must be denied as well.
Plaintiff's motion for a preliminary injunction .
On a motion for a preliminary injunction, the movant must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see Doe v. Axelrod , 73 NY2d 748, 750 [1988] ; Automated Waste Disposal, Inc. v. Mid-Hudson Waste, Inc. , 50 AD3d 1072, 1072-1073 [2008] ; Petervary v. Bubnis , 30 AD3d 498 [2006] ). "A party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts" ( Omakaze Sushi Rest., Inc. v. Ngan Kam Lee , 57 AD3d 497 [2008] ; see Miller v. Price , 267 AD2d 363, 364 [1999] ). The purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties (see Moody v. Filipowski , 146 AD2d 675, 678 [1989] ; Matter of 35 NY City Police Officers v. City of New York , 34 AD3d 392, 393-394 [2006] )
( Wheaton/TMW Fourth Ave., LP v. New York City Dept. of Bldgs. , 65 AD3d 1051, 1052 [2d Dept 2009] ). As the Appellate Division wrote in Deutsch v. Grunwald , 165 AD3d 1035, 1037 [2d Dept 2018] :
"To obtain a preliminary injunction, the moving party must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in his or her favor" ( Carroll v. Dicker , 162 AD3d 741, 742, 80 N.Y.S.3d 69 ; see CPLR 6301 ; Gonzalez v. 231 Maujer St., HDFC , 157 AD3d 869, 870, 69 N.Y.S.3d 689 ). "The decision to grant or deny a preliminary injunction rests in the sound discretion of the Supreme Court" ( Ruiz v. Meloney , 26 AD3d 485, 486, 810 N.Y.S.2d 216 ; see Doe v. Axelrod , 73 NY2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272 ; Automated Waste Disposal, Inc. v. MidHudson Waste, Inc. , 50 AD3d 1072, 857 N.Y.S.2d 648 ). Here, a preliminary injunction was warranted to maintain the status quo (see Arcamone—Makinano v. Britton Prop., Inc. , 83 AD3d 623, 920 N.Y.S.2d 362 ). "Where denial of injunctive relief would render the final judgment ineffectual, the degree of proof required to establish the element of likelihood of success on the merits should be accordingly reduced" ( Sau Thi Ma v. Xuan T. Lien , 198 AD2d 186, 187, 604 N.Y.S.2d 84 [internal quotation marks and citation omitted] ). The plaintiff would suffer irreparable injury absent the relief sought and the balance of the equities favors the plaintiff given the prejudice that the plaintiff would suffer from a denial of the requested relief (see id. at 187, 604 N.Y.S.2d 84 )
( Deutsch v. Grunwald , 165 AD3d at 1037 ).
Measured by the applicable standard, plaintiff has established entitlement to a preliminary injunction, preventing the defendants, pending the final determination of this action, from interfering with its access, and access by its employees, business invitees, visitors, service and utility personnel and refuse carter(s) to its premises through the driveway that lies between the buildings that front onto Walt Whitman Road and from erecting any fences or other structures that would interfere with the maneuvering or parking of vehicles on the 572 property. With respect to the likelihood of success on the merits of its claims, the documentary record, as well as the testimony elicited at the evidentiary hearing on plaintiff's application, shows, without any substantial dispute, that from the early 1960s onward, the plaintiff and its predecessors, along with their respective employees, business visitors, vendors and those servicing the premises and its operations, have regularly used the driveway between the two main buildings to access the rear structure on the 560 property and the parking spaces that lie between that structure and the main building. Defendants contend that such use was permissive, not hostile and not dictated by necessity - and therefore inconsistent with either of the easement bases alleged by plaintiff. With respect to first of these contentions, as noted above "[h]ostility does not require a showing of enmity or specific acts of hostility.... All that is required is a showing that the [use] constitutes an actual invasion of or infringement upon the owner's rights" ( Mispalleleh Beis Medresh Torah Vadaas v. Yeshivath Kehilath Yakov, Inc ., supra , 89 AD3d at 701 [internal quotation marks omitted] ). So far as the record currently stands, such showing is amply evident. As to necessity, plaintiff has shown that the driveway on the south side of the 572 property, entering onto Amityville Road, is too narrow — thirteen feet at its narrowest point — to allow two-way traffic or to accommodate large emergency vehicles, particularly fire trucks. The combination of safety concerns and the disruption of business operations on the 572 property that would result from denial of preliminary injunctive relief maintaining the status quo constitute irreparable harm justifying injunctive relief (see generally Deutsch v. Grunwald , 165 AD3d 1035, 1037 [2d Dept 2018] ; Lew Beach Co. v. Carlson , 57 AD3d 1153, 1155 [3d Dept 2008] ). Indeed, although maintaining the status quo ante and continuing to have users of and visitors to the 572 property access that property over the easement claimed by plaintiff necessarily constitutes a burden on the defendants' enjoyment of their ownership of the 560 property, that burden, based upon the record that has been adduced, is of substantially less magnitude than the detriment that plaintiff would suffer in the absence of preliminary relief.
Accordingly, and for the foregoing reasons, plaintiff's motion for a preliminary injunction is granted to the extent that pending the final determination of this action, defendants are enjoined from interfering with its access, and access by its employees, business invitees, visitors, service and utility personnel and refuse carter(s) to its premises through the driveway that lies between the buildings that front onto Walt Whitman Road and from erecting any fences or other structures that would interfere with the maneuvering or parking of vehicles on the 572 property. Pursuant to CPLR 6312[b], plaintiff shall give an undertaking in the amount of $50,000.00, to abide the outcome of this action and without prejudice to an application by any party to alter or modify such undertaking and/or the amount thereof. Further, defendants' motion to vacate the temporary restraining order previously entered herein is denied as moot.
The court has considered the other arguments of the parties and deems that they do not necessitate further or additional discussion.
The foregoing constitutes the decision and order of the court.