The following papers were read on this motion: Notice of Motion, Affidavit, Exhibits 1 Notice of Cross Motion, Affidavit and Affirmation, Exhibits 2 Reply Affirmation 3 Defendant Gerard L. Eastman, Jr., pro se (“Gerard Eastman”), moves for an Order pursuant to CPLR §3212 granting summary judgment dismissing the complaint as against him and as against defendant Lisa M. Eastman (“Lisa Eastman”), his wife. The motion is determined as hereinafter provided. Factual and Procedural Background Plaintiffs commenced this action seeking to recover damages suffered from the alleged illegal operation of a business on property adjacent to their home. In their verified complaint, plaintiffs assert causes of action for nuisance, negligent infliction of emotional distress, and punitive damages. The following facts are not disputed. Plaintiffs are the owners and residents of premises 4 Matinecock Farms Road, Glen Cove, New York (“4 Matinecock Farms Road”) designated on the Land and Tax Map of Nassau County (“Tax Map”) as Section 23, Block H, Lots 500 & 502. Defendant Pennoyer is the owner of premises 16 Underhill Road, Glen Cove, New York (“16 Underhill Road”) designated on the Land and Tax Map of Nassau County (“Tax Map”) as Section 23, Block H, Lots 521, 522A, 522B, 523 & 524. Defendants Gerard Eastman and Lisa Eastman, his wife (jointly, the “Eastmans”) are the owners of premises 18 Underhill Road, Glen Cove, New York (“18 Underhill Road” or the “Eastman Property”) which is designated on the Land and Tax Map of Nassau County (“Tax Map”) as Section 23, Block H, Lots 517. Plaintiffs allege in their complaint, in sum and substance, as follows: Defendant Bourne is a tenant living at 18 Underhill Road and he is conducting a commercial business at both 16 and 18 Underhill Road. Plaintiffs’ property is immediately adjacent to both 16 and 18 Underhill Road. All of the properties are located in a residential zoning district pursuant to the Glen Cove City Zoning Code (the “Code”), which prohibits the operation of a commercial business in a residential zone. Bourne’s business involves the transportation of large trees and landscaping/construction refuse to and from the property for purposes of dumping and converting it to fire wood and wood chips, the operation of heavy duty commercial equipment and machines and the operation of large commercial vehicles on and through 16 and 18 Underhill Road. Plaintiffs allege that the business is operated at all hours of the day and night, seven (7) days a week, and that the operation of the illegal business has caused the creation of a nuisance, and has caused the negligent infliction of emotional distress to plaintiffs. Plaintiffs also claim that as a result of the actions of defendant Bourne, they have been caused to suffer the loss, use and enjoyment of their property, and to suffer the diminished value of their property. Defendant Gerard Eastman, pro se, moves for an Order pursuant to CPLR §3212 granting summary judgment dismissing the complaint as against him, and as against defendant Lisa Eastman, who is his wife. The Court notes, at the outset, that defendants Gerard Eastman and Lisa Eastman each filed, pro se, separate answers, on or about February 26, 2021. Lisa Eastman has not filed a separate motion for summary judgment. As defendant Gerard Eastman is not an attorney, he cannot seek relief on behalf of another defendant, even if that defendant is his wife. Judiciary Law §478 provides that it is unlawful for a person to practice or appear as an attorney-at-law for a person other than himself or herself in a court of record or to render legal services, unless that person is licensed and admitted to practice law in the courts of record of this state. A person who is not licensed to practice law in the State of New York may not appear pro se on behalf of a litigant nor may a party proceeding pro se represent other parties in the same action (Abraham v. Am. Gardens Co., 189 AD3d 741, 745 [2d Dept 2020]). Accordingly, the Court will deem the motion for summary judgment as having been made by Mr. Eastman solely in his behalf. In support of his motion, Mr. Eastman submits his affidavit, the pleadings and a copy of a Nassau County Land and Tax Map for Section 23, Block H (the “Tax Map”) which depicts all the properties in issue herein. Mr. Eastman also submits a certified copy of a recorded Declaration of Covenants and Restrictions, Mutual Right-of-Way Agreement and Dedication of Drainage Easement (the “ROW Agreement”) which is also at issue herein. Mr. Eastman states in his affidavit that he and his wife Lisa Eastman purchased 18 Underhill Road, on which exists a one-family home, in 2000, and that they have resided there since 2004. He asserts that he is an investment banker and that he and his wife have never operated any type of commercial enterprise at the property. He states further that they have no commercial relationship with their neighbors at 16 Underhill Road, that they do not permit those neighbors, and have never permitted them, to utilize the Eastman Property for any purpose whatsoever. Mr. Eastman asserts that plaintiffs’ allegation that 18 Underhill Road is adjacent to plaintiffs’ residence is false, and that the properties are approximately 700′ apart, as evidenced by the Tax Map. In addition, he states that defendant Bourne does not currently, nor has he ever, resided at 18 Underhill Road, as alleged in the complaint. Rather, Bourne is a tenant residing at 16 Underhill Road. Mr. Eastman cites to affidavits submitted to the Court on a previous motion to dismiss made by defendant Bourne, in which Bourne attested that he was a tenant residing at 16 Underhill Road. In an affidavit in opposition to that motion, plaintiff Ira Zimmerman acknowledged that Bourne resides at 16 Underhill Road. Mr. Eastman further attests that Bourne has never conducted activities of any kind upon 18 Underhill Road, nor has ever been authorized or permitted to do so. Mr. Eastman attests further that neither he nor his wife have any proprietary or ownership interest in 16 Underhill Road. Mr. Eastman argues that plaintiffs’ claim that the Eastmans have allowed Bourne to use a right of way (“ROW”) running across their property to engage in his alleged illegal activities is without merit. Mr. Eastman asserts that, as evidenced by the Tax Map and the ROW Agreement, the ROW is not located on the Eastman Property (Lot 517), but rather it is located on Lot 522A, which is part of 16 Underhill Road which is owned by defendant Paul G. Pennoyer and is occupied by Bourne. Mr. Eastman further argues that the Eastmans have no legal right or authority to prevent or restrict Bourne’s access to, and activities on, 16 Underhill Road. He cites to the ROW Agreement which provides that the owners of each of the parcels shall have and enjoy the same benefit over the right-of-way “for the purposes of ingress and egress to and from their respective parcels and Underhill Road and for the purpose of installing and maintaining utility lines servicing said parcels.” In opposition to the motion, plaintiffs submit their attorney’s affirmation and an affidavit of plaintiff Ira Zimmerman. In their opposition papers, plaintiffs argue, in essence, that the Eastmans are responsible for Bourne’s use of the ROW, even if the ROW is not located on the Eastman Property. Plaintiffs concede that the ROW is not located on the Eastman Property, and that it “is located directly between Lots 521 and Lots [sic] 517 (the Eastman Property), and leads directly to Lots 522(A) and 523, which is the property known as 16 Underhill Road.” (Affidavit of Ira Zimmerman, par. 18). Plaintiffs cite to a provision in the ROW Agreement which states that the ROW shall “be kept in repair and maintained, snowplowed and sanded as needed by the three owners of said parcels who shall pay all costs associated therewith…. [in equal shares of 33 1/3 percent each]“. Plaintiffs contend that because the Eastmans, together with the other owners using the ROW, are responsible for repairs of the ROW, they are responsible for the use of the ROW, and are responsible for ensuring that the ROW is used in strict compliance with the terms of the ROW Agreement and with the laws and codes of the municipalities whose laws govern the use of the property. Accordingly, plaintiffs argue, the Eastmans are legally responsible for any improper or illegal use by Bourne of the ROW. In reply, Mr. Eastman first argues that plaintiffs’ opposition papers were filed and served late and should not be considered. The motion was returnable on May 7, 2021, was filed on April 9, 2021 and demanded answering papers seven (7) days prior to the return date, as per CPLR §2214[b]. The opposition papers were efiled on May 4, 2021 and mailed on the same day. As to the merits, Mr. Eastman argues that plaintiffs’ opposition papers fail to raise any triable issue of fact precluding the granting of summary judgment in his favor. Discussion and Ruling Pursuant to CPLR §3212[b], a motion for summary judgment “shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” “The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.” Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Andre v. Pomeroy, 35 NY2d 361 [1974]). Thus, the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc., 182 AD2d 446 [1st Dept 1992]). The court’s role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Gervasio v. Di Napoli, 134 AD2d 235, 236 [2d Dept 1987]; Assing v. United Rubber Supply Co., 126 AD2d 590 [2d Dept 1987]). Nevertheless, “the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated” (Gervasio v. Di Napoli, supra, at 236 quoting from Assing v. United Rubber Supply Co., supra; see, Columbus Trust Co. v. Campolo, 110 AD2d 616 [2d Dept 1985], aff’d 66 NY2d 701 [1985]). If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided (see, Andre v. Pomeroy, 35 NY2d at 364; Assing v. United Rubber Supply Co., 126 AD2d at 591). A party appearing in opposition to a motion for summary judgment must lay bare its proof and present evidentiary facts sufficient to raise a genuine triable issue of fact (Morgan v. New York Tel., 220 AD2d 728, 729 [2d Dept 1995]; see, Zuckerman v. City of New York, 49 NY2d 557 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065 [1979]; World Trade Knitting Mills v. Lido Knitting Mills, 154 AD2d 99 [2d Dept 1990]). Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation (see, Federal Deposit Ins. Corp. v. Jacobs, 185 AD2d 913 [2d Dept 1992]. With regard to Mr. Eastman’s argument that plaintiffs’ opposition papers were not timely filed or served, the Court finds that plaintiffs’ papers were indeed late. The papers should have been served by April 30, 2021, but were served and filed on May 4, 2021, and plaintiffs’ counsel proffers no excuse or explanation for the lateness. Nevertheless, given the strong public policy of disposing of cases on the merits, and since Mr. Eastman had time to and did submit a reply, he was not prejudiced. The Court, in its discretion, has chose to accept and consider the opposition papers. (See Bakare v. Kakouras, 110 AD3d 838, 839 [2d Dept 2013](“Contrary to the defendants’ contention, the Supreme Court providently exercised its discretion in accepting the plaintiffs’ untimely opposition papers, since the defendants were not prejudiced thereby.”); Mughal v. Rajput, 106 AD3d 886, 887 [2d Dept 2013](“Although the affidavit was not timely submitted, the plaintiffs had an opportunity to respond to it, and were not prejudiced thereby”]). Turning to the merits, the Court finds that defendant Gerard Eastman has established his entitlement to judgment as a matter of law, and plaintiffs have failed to raise a triable issue of fact precluding the granting of summary judgment to Mr. Eastman. The documentary evidence presented, including the ROW and Tax Map, as well as the affidavits of both Mr. Eastman and Mr. Zimmerman, establish that the ROW is not located on the Eastman Property. The Court finds that the only issue of fact raised is whether defendant Bourne is conducting an illegal commercial business on 16 Underhill Road, which is the property owned by Paul G. Pennoyer. However, this issue of fact has no bearing on the instant motion seeking summary judgment dismissing the complaint as against defendant Gerard Eastman. Plaintiffs’ argument that there is “a material question of law as to whether [the Eastmans]…have the authority or responsibility to ensure that said “right of way” is being used in accordance with the declarations, covenants, and laws of the municipality” is untenable and without merit. Moreover, a “question of law” is not a basis for denial of a summary judgment motion, as it is the Court’s function to resolve questions of law, in contrast to questions of fact which are to be determined by the trier of fact at trial. In support of their argument that the Eastmans are responsible for ensuring that the ROW is not being used for any improper or illegal purpose by Bourne, plaintiff cite to no judicial or statutory authority. Plaintiffs only offer an analogy — if an owner of a single family home rents the home to a family, and that family then creates and rents an illegal apartment in the home, the homeowner is responsible for the illegal use and must answer for any violations of the municipal laws. However, here, the ROW is not on the Eastman Property, and the analogy is inapplicable. Plaintiffs cite to no authority, and the Court itself has found none, holding that a party that is obligated to contribute towards the cost of repair and maintenance of a ROW which exists on another’s property, for the use of the party in common with other property owners, creates a further obligation upon such party to ensure that the ROW is not used by others in violation of any ordinance or statute. The Court has found one case that is instructive, 836 Franklin Ave. Catering Corp. v. Haber, 164 Misc 227 [Sup Ct Kings County 1937], aff’d, 251 AD 728 [2d Dept 1937]). Plaintiff had an easement over defendant’s property for the express use as a means of egress in case of fire. When plaintiffs began using the easement “as a passageway for the delivery of merchandise, supplies and coal and for the removal of garbage and refuse” the defendant, to prevent such misuse of the easement, barred all use of the servient (defendant’s) land by placing a lock on the gate at the street line. The Court held that plaintiff’s improper use of the easement did not entitle defendants to block use of the easement, stating (164 Misc 227 at 228-229): It is well established that the excessive misuse or abuse of any easement right is not sufficient to constitute a forfeiture, waiver or abandonment of the right. Welsh v. Taylor, 134 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535; Roby v. New York Cent. & H. R. R. Co., 142 N.Y. 176, 181, 36 N.E. 1053, 1055; McCullough v. Broad Exchange Co., 101 App.Div. 566, 92 N.Y.S. 533, affirmed, 184 N.Y. 592, 77 N.E. 1191; Adirondack Power & Light Corporation v. Evans, 226 App.Div. 490, 493, 235 N.Y.S. 569, 575. As stated in the Roby Case, the ‘mere use of the easement for a purpose not authorized, the excessive use or misuse, or the temporary abandonment thereof, are not of themselves sufficient to constitute an abandonment.’ The Court further held that “[t]he fact that plaintiffs may have abused the easement right did not authorize defendants to seize and appropriate it to themselves arbitrarily.” (164 Misc at 229). Thus, in 836 Franklin Ave. Catering Corp., the Court held that the defendant was not permitted to take action to stop use of the easement, which was located on defendant’s own property. In the case at bar, plaintiffs argue that the Eastmans are responsible for stopping another party’s use of an easement that is not even located on the Eastman’s property. This Court finds that plaintiffs’ argument is without merit. Based upon careful review and consideration of the papers submitted, and the undisputed facts of this case, the Court finds that defendant Gerard Eastman has established his prima facie entitlement to summary judgment, and plaintiffs have failed to raise a genuine triable issue of fact. Accordingly, defendant Gerard Eastman’s motion for summary judgment dismissing the complaint as against said defendant is GRANTED. Furthermore, although defendant Lisa Eastman did not move for summary judgment, this Court has the authority pursuant to CPLR §3212[b] to search the record and grant summary judgment to a nonmoving party with respect to an issue that was the subject of the motion before the court. (See Dunham v. Hilco Constr. Co., 89 NY2d 425, 429 [1996]; Goldstein v. County of Suffolk, 300 AD2d 441, 442 [2d Dept 2002]). Under the circumstances of this case, this Court finds that defendant Lisa Eastman is also entitled to summary judgment. Accordingly, defendant Lisa Eastman is GRANTED summary judgment and the complaint is dismissed as against her. Any other relief sought herein but not specifically ruled upon is DENIED. This constitutes the Decision and Order of the Court. Dated: July 30, 2021
