Practice point: The plaintiffs and the defendants are neighbors and share a common right-of-way. Years ago the owner subdivided her property into what is now the plaintiffs' property and the defendants' property. A 10-foot-wide strip of land between the parties' properties was not conveyed to either property. The parties do not dispute that they both have the right of ingress and egress over the 10-foot-wide strip of land, but the disagree as to whether the plaintiffs have an easement to use portions of the defendants' property as a driveway.
According to the plaintiffs, the defendants began to restrict access to portions of the common driveway that were on the defendants' property. The plaintiffs commenced this action seeking a declaration that the defendants' property is subject to an easement in favor of the plaintiffs' property. After a nonjury trial, the Supreme Court issued a decision and order directing the dismissal of the plaintiffs' claims, and directing that a judgment be settled on notice. However, the defendants did not settle the judgment within 60 days, as is required by 22 NYCRR 202.48.
The plaintiffs commenced a second action, seeking essentially the same relief that was denied in this action, and asserting additional causes of action. The defendants moved for summary judgment in the second action dismissing numerous causes of action on the ground that they had been dismissed in this action and were thus barred by the doctrine of res judicata. The Supreme Court denied the motion, partly because no judgment had been entered in this action.
Thereafter, the defendants moved pursuant to CPLR 2004 in this action to extend their time to settle the judgment pursuant to the decision and order. The Supreme Court granted the motion, and a judgment was entered. On this appeal from that judgment, the plaintiffs contend that the Supreme Court erred in extending the defendants' time to settle the judgment, in dismissing their first cause of action as abandoned, and in dismissing their causes of action seeking an easement by prescription or necessity.
The Appellate Division affirmed, finding that, while the defendants' did engage in dilatory behavior, the interests of justice demand that the court not be burdened with the
trial of demonstrably meritless causes of action.
Student note: It is within the sound discretion of the court to accept a belated order or judgment for settlement. A court should not deem an action or judgment abandoned where the result would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources.
Case: Curanovic v. Cordone, NY Slip Op 09398 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Summary judgment on the issue of liability on a Labor Law § 240(1) claim.
