441 EAST 57TH STREET LLC v. 447 EAST 57TH STREET CORP

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Supreme Court, Appellate Division, First Department, New York.

441 EAST 57TH STREET, LLC, Plaintiff-Respondent, v. 447 EAST 57TH STREET CORP., Defendant-Appellant.

Decided: November 30, 2006

BUCKLEY, P.J., TOM, MAZZARELLI, WILLIAMS, McGUIRE, JJ. Kane Kessler, P.C., New York (Dana M. Susman of counsel), for appellant. Ganfer & Shore, LLP, New York (Mark A. Berman of counsel), for respondent.

Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered June 28, 2006, which, inter alia, upon a search of the record, granted plaintiff summary judgment declaring that it has the right and does not need defendant's consent to demolish its building, including the eastern party wall thereof, unanimously affirmed, without costs.

The motion court properly granted plaintiff summary judgment on a record plainly intended to lay bare the parties' proof (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 320-321, 515 N.Y.S.2d 1 [1987] ), and which raises no material issues of fact.   Because defendant's predecessors in title demolished the building adjoining the party wall, which, under an 1867 Party Wall Agreement, was to be located between two buildings on equal portions of adjacent lots, and defendant has not used the wall to support a building on its lot in nearly 80 years, plaintiff is entitled to demolish its building and the entire party wall and put a definitive end to the party wall easement created under the 1867 agreement (see 357 E. Seventy-Sixth St. Corp. v. Knickerbocker Ice Co., 263 N.Y. 63, 188 N.E. 158 [1933] ).   Defendant's “use” of the wall to provide privacy and an ornamental backdrop to its garden is not a “necessity,” but a “mere convenience or advantage” that was not contemplated by the 1867 agreement and does not require continuation of the easement (id. at 66, 188 N.E. 158).