Marte v. Boerum Johnson, LLC

Marte v Boerum Johnson, LLC (2023 NY Slip Op 04958)

Marte v Boerum Johnson, LLC

2023 NY Slip Op 04958

Decided on October 4, 2023

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 4, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
ROBERT J. MILLER
PAUL WOOTEN
JANICE A. TAYLOR, JJ.
2020-09274
2021-01104
(Index No. 518962/19)

The Sharova Law Firm, Brooklyn, NY (Charles W. Marino of counsel), for appellants.

Borchert & LaSpina, P.C., Whitestone, NY (Robert W. Frommer of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiffs have an easement over the defendant's property, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Dawn M. Jimenez-Salta, J.), dated October 29, 2020, and (2) an order of the same court dated January 7, 2021. The order dated October 29, 2020, granted the defendant's motion for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff Emenegilda Marte has no easement over the defendant's property, and denied the plaintiffs' cross-motion, inter alia, for summary judgment on the complaint. The order dated January 7, 2021, denied the plaintiffs' motion for leave to renew and reargue their opposition to the defendant's motion for summary judgment dismissing the complaint and, in effect, declaring that the plaintiff Emenegilda Marte has no easement over the defendant's property and the plaintiffs' cross-motion, inter alia, for summary judgment on the complaint.

ORDERED that the order dated October 29, 2020, is affirmed; and it is further,

ORDERED that the appeal from so much of the order dated January 7, 2021, as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated January 7, 2021, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the plaintiff Emenegilda Marte has no easement over the defendant's property.

The facts relating to this appeal are set forth in this Court's decision and order on a related appeal (see Boerum Johnson, LLC v Marte, ___ AD3d ___ [decided herewith]). For the [*2]reasons set forth therein, the plaintiff Emenegilda Marte has no easement over the defendant's property.

The plaintiffs' remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that Emenegilda Marte has no easement over the defendant's property (see Lanza v Wagner, 11 NY2d 317).

DILLON, J.P., MILLER, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court