SACHAR v. EAST 53 REALTY LLC (2009)

In an action pursuant to RPAPL article 15 to determine claims to real property, the defendant appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated April 13, 2007, which granted the plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, with costs.

 “[A] grantor cannot create an easement benefitting land not owned by the grantor” at the time of the grant (Beachside Bungalow Preserv. Assn. of Far Rockaway v. Oceanview Assoc., 301 A.D.2d 488, 489, 753 N.Y.S.2d 133;  see Matter of Estate of Thomson v. Wade, 69 N.Y.2d 570, 573-574, 516 N.Y.S.2d 614, 509 N.E.2d 309;  Tuscarora Club of Millbrook, N.Y. v. Brown, 215 N.Y. 543, 109 N.E. 597;  Lechtenstein v. P.E.F. Enters., 189 A.D.2d 858, 859, 592 N.Y.S.2d 777;  cf. Sam Dev. v. Dean, 292 A.D.2d 585, 585-586, 740 N.Y.S.2d 90).

 The plaintiff made a prima facie showing of his entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718) by submitting documents establishing that, at the time the easement was purportedly created, the grantor owned the servient property, but not the dominant property.   Accordingly, the plaintiff established, as a matter of law, that no valid easement was ever reserved (see Matter of Estate of Thomson v. Wade, 69 N.Y.2d at 573, 516 N.Y.S.2d 614, 509 N.E.2d 309;  Tuscarora Club of Millbrook, N.Y. v. Brown, 215 N.Y. 543, 109 N.E. 597;  Beachside Bungalow Preserv. Assn. of Far Rockaway v. Oceanview Assoc., 301 A.D.2d at 489, 753 N.Y.S.2d 133;  cf. Lechtenstein v. P.E.F. Enters., 189 A.D.2d at 859, 592 N.Y.S.2d 777).

In opposition, the defendant's attorney argued that the owners of the two properties at the time of the purported reservation of the easement in 1936 were, in effect, the same because they appeared to share the same corporate principals.   However, these conclusory statements were unsupported by any documentary evidence, and therefore were insufficient to defeat the plaintiff's summary judgment motion (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment.