The following papers numbered 1 to 10 were fully submitted on the 14th day of September, 2018: Pages NumberedOrder to Show Cause by plaintiff, with supporting affidavits/ affirmationsand Exhibits 1(Dated July 3, 2018)Notice of Motion for Summary Judgment by defendant Casey Robiskywith Supporting affidavits/ affirmations and Exhibits(Dated June 29, 2018) 2Notice of Motion for Summary Judgment by defendant Edward Robiskywith Supporting Affidavits/ affirmations and Exhibits(Dated August 3, 2018) 3Affirmation in Opposition to Plaintiff’s Order to Show Cause on behalf ofCasey Robisky with Exhibits(Dated July 23, 2018) 4Affirmation in Opposition to Plaintiff’s Order to Show Cause on behalf ofEdward Robisky with Exhibits(Dated August 9, 2018) 5Affidavit of plaintiff, Angela Kuzmicki, in opposition to Robisky motions(Dated August 13, 2018) 6Affirmation in Opposition to Robisky motions on behalf of plaintiff With Exhibits(Dated August 15, 2018) 7Reply Affirmation on behalf of plaintiff, Kuzmicki(Dated August 10, 2018) 8Reply Affirmation on behalf of defendant, Casey Robisky with Exhibits(Dated September 11, 2018) 9Reply Affirmation on behalf of defendant, Edward Robisky with Exhibits(Dated September 12, 2018) 10DECISION AND ORDER The plaintiff, Angela Kuzmicki (hereinafter, “Kuzmicki”), brings action against the defendants for trespass and for an order permanently enjoining the defendants from trespassing upon her property and for damages in that regard. The plaintiff, Kuzmicki, now moves by Order To Show Cause to temporarily and/or preliminarily restrain defendants, Kevin Hartnett, Casey Robisky, Edward Robisky, and Brian Sullivan from entering, using or traversing her property pending disposition of this action; for leave to amend the complaint to include Bentley Yacht Club member Henry Vallaroel as a defendant and deeming the complaint served upon all parties to the litigation; and for a default judgment against defendants Bentley Yacht Club and Elizabeth Robisky.The defendants, Casey Robisky and Edward Robisky separately move for summary judgment to dismiss the complaint and for an order granting of an easement upon the plaintiff’s property.Plaintiff Angela Kuzmicki owns property abutting the water at 99 Hopping Avenue, Staten Island, New York. The defendants, Casey Robisky and Edward Robisky (hereinafter the “Robisky Defendants”) own and occupy the neighboring waterfront property located at 91 Hopping Avenue. The Bentley Yacht Club is also located at and operated from the Robisky’s property at 91 Hopping Avenue. The Bentley Yacht Club provides a marina for its members to moor their individual vessels and promote the sport of yachting or boating. Over the years, the plaintiff had a verbal agreement with Bentley Yacht Club and its members whereby club members were permitted to enter plaintiff’s property for the purpose of launching their vessels from her boat slip in the spring and permitting them to retrieve their vessels at the end of the boating season.The individually named defendants in this action appear to be members of the Bentley Yacht Club who have allegedly trespassed upon the plaintiff’s property and whom plaintiff seeks to temporarily and ultimately to permanently restrain from entering upon her property.A prior lawsuit was brought before this court where Bentley Yacht Club sought an order preventing Kuzmiki from blocking members’ access to a boat ramp at the rear of her property. In that case, this court held that Bentley Yacht Club had not established entitlement to an easement upon plaintiff’s property. Specifically, this court denied Bentley Yacht Club’s motion to grant an easement over Plaintiff’s property to access the boat ramp (see Richmond County Supreme Court Index No. 15130/2016).Plaintiff’s present Order to Show Cause, first requests leave to amend the complaint to add Henry Vallaroel (a Bentley Yacht Club member) as a defendant and to deem the proposed amended complaint served upon all named defendants who have answered, nunc pro tunc. There is no opposition to this portion of the motion. Accordingly, the plaintiff is granted to leave to amend the complaint to add Henry Vallaroel as a defendant in the format annexed to the Order to Show Cause as Exhibit “E”. The amended complaint shall be deemed served upon the attorneys for all represented parties upon efiling of the amended complaint. Plaintiff is to serve the amended complaint upon all pro se litigants and upon the newly added defendant, Vallaroel, pursuant to the CPLR.Plaintiff next requests that a default judgment be entered as against the Bentley Yacht Club and Elizabeth Robisky. According to the affidavits of service annexed to the Order To Show Cause, Elizabeth Robisky was served on September 18, 2017, by service upon Casey Robisky, her son, at her home located at 91 Hopping Avenue, Staten Island, N.Y. Substituted service was followed by mailing. Service upon the Bentley Yacht Club was effected by service upon Casey Robisky, an authorized agent, on September 18, 2017 at the Yacht Club address. There being no opposition, and proof of service having been submitted, the plaintiff’s motion for a default judgment against defendants, Elizabeth Robisky and the Bentley Yacht club is granted.Plaintiff, Kuzmicki, also moves for a temporary and preliminary order restraining all defendants from entering, using or traversing her property, pending the disposition of this action. The Robisky defendants oppose this branch of the Order to Show Cause and move for summary judgment and for an order granting an easement for ingress and egress over the plaintiff’s property.The Robisky defendants, who own 91 Hopping Avenue, claim that they have a 35 foot boat, which they have no way to launch but by traversing plaintiff’s property located at 99 Hopping Avenue.The Robisky defendants assert that at one time, both properties at 91 Hopping Avenue and 99 Hopping Avenue were owned by Lenora Jolene. It is further claimed, that because prior and current owners at 91 Hopping Avenue, such as Mr. Wetherill who sold to the Robisky defendants, were permitted by to utilize a portion of 99 Hopping Avenue to launch boats, that Jolene must have intended this use to be permanent. Therefore, based upon such past use, it is claimed that an easement by implication and/or an easement by prescription and/or an easement by necessity arose. The Robisky defendants also rely upon a land grant as proof of this intent. The Robisky defendants further rely upon the doctrine of jus publicum in an attempt to establish that defendants, as members of the general public, are entitled to use her property between the high and low water marks.In opposition, the plaintiff asserts that she owns her property in fee, including the land between the high and low water marks, without restriction. A deed and survey are submitted establishing her ownership to the bulkhead line without restriction. Plaintiff also relies upon this court’s prior decision which held that prior use of plaintiff’s property was solely permissive and further that no easement existed in favor of the Bentley Yacht Club.For the reasons set forth herein, the plaintiff’s Order To Show Cause is granted and the Robisky Defendant’s motions are denied.An easement by prescription is demonstrated by proof of an adverse, open and notorious continuous and uninterrupted use of the property for the prescriptive period (J.C. Tarr, Q.P.R.D. v. Delsener, 19 A.D.3d 548, 800 N.Y.S.2d 177). Here, even assuming that the Robisky defendants established that their use of the plaintiff’s property was open, notorious, continuous and undisputed, such evidence was insufficient to rebut the fact that the property use was not hostile, but was permitted as a matter of neighborly accommodation (see, Allen v. Mastrianni, 2 A.D.3d 1023, 768 N.Y.S.2d 523). Therefore, there is no proof of existence of a prescriptive easement.The Robisky defendants also seek summary judgment predicated upon an easement by necessity. The party asserting that it has an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity of title and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party’s land. The necessity must exist in fact and not as a mere convenience. The necessity required for an easement by necessity must be indispensable to the reasonable use of the adjacent property (see, Simone v. Heidelberg, 9 N.Y.3d 177, 847 N.Y.S.2d 511, 877 N.E.2d 1288). The Robisky defendants established only that they utilized the plaintiff’s property during certain times of the year for the purpose of launching their boat. Defendants are not entitled to an easement by necessity because accessing the water through the plaintiff’s property certain months of the year is not indispensable to the reasonable use of the property and is nothing more than a mere convenience for purposes of the sport of boating (see, Simone v. Heidelberg, supra,). Nor is their proof that at the time of separation of the properties, such an easement was necessary or had been in existence.In order for an easement by implication from pre-existing use to exist, there must be three elements: (1) unity and subsequent separation of title; (2) the claimed easement must have, prior to separation, been so long continued and obvious as to show that it was meant to be permanent; and (3) the use must be necessary for the beneficial enjoyment of the land retained (Beretz v. Diehl, 302 A.D.2d 808, 755 N.Y.S.2d 122, 2003). As the Robisky defendants assert, the necessity for an easement by implication based upon preexisting use is only reasonable necessity, in contrast to the absolute necessity required to establish an easement by necessity (Four S Realty Co. v. Dynko, 210 A.D.2d 622, 619 N.Y.S.2d 855, 1994). Nevertheless, under either theory, mere convenience is not sufficient to establish necessity (Asche v. Land & Building Known as 64-29 232rd St., 12 A.D.3d 386, 784 N.Y.S.2d 577, 2004). Moreover, there is no proof of the second element, namely proof of such a long continued use prior to separation of title.Lastly, there is no easement upon the plaintiff’s property in favor of the general public, which would include the defendants. As the Court of Appeals held in People v. Steeplechase Park, Co., 218 N.Y. 459, 1916, a grant of land under navigable water containing no restrictions constitutes an unqualified grant of fee therein, and is not subject to any easement in favor of the public. The plaintiff owns her property in fee without any restrictions in favor of the general public.Accordingly, it is,ORDERED that the plaintiff’s Order to Show Cause is granted to the extent set forth herein; and it is further,ORDERED, that the plaintiff is granted permission to amend her complaint to include defendant, Henry Villaroel, in the format set forth in the proposed amended complaint; plaintiff is to efile the amended complaint and serve a copy of the amended complaint upon the pro se defendants and defendant Villaroel pursuant to the CPLR; and it is further,ORDERED, that a default judgment is granted as against defendants, Bentley Yacht Club and Elizabeth Robisky; and it is further,ORDERED, that the defendants are temporarily and/or preliminarily restrained from using and/or traversing the plaintiff’s property pending the disposition of the instant action; and it is further,ORDERED, that motions of Casey Robisky and Edward Robisky for summary judgment are denied.
