135 WEST BROADWAY LLC v. 137 WEST BROADWAY OWNERS CORP (2020)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered July 27, 2019, which denied plaintiffs' motion for a preliminary injunction enjoining defendant from interfering with their use of a shaftway on its property, and granted defendant's cross motion for a preliminary injunction requiring plaintiffs to immediately vacate and remove all their equipment, materials, and other property from defendant's property, unanimously reversed, on the law and the facts, without costs, the motion granted, and the cross motion denied.

Plaintiffs made a prima facie showing that their use of the shaftway between the exterior of their building and defendant's adjacent building may satisfy the requirements for establishing adverse possession (see Walling v. Przybylo, 7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167 [2006]) and/or a prescriptive easement (see Amalgamated Dwellings, Inc. v. Hillman Hous. Corp., 33 A.D.3d 364, 822 N.Y.S.2d 499 [1st Dept. 2006]). Issues of fact exist, inter alia, as to the open and notorious element (see Weinstein Enters. v. Pesso, 231 A.D.2d 516, 517, 647 N.Y.S.2d 260 [2d Dept. 1996]).

In our view, the court should not have granted a preliminary injunction in defendant's favor, awarding defendant the ultimate relief it seeks without a trial on the merits of plaintiffs' adverse possession claim (see e.g. Spectrum Stamford, LLC v. 400 Atl. Tit., LLC, 162 A.D.3d 615, 617, 81 N.Y.S.3d 5 [1st Dept. 2018]). It is apparent that an expedited trial is warranted.