Upon the efiled documents numbered 37-50; 52-55; and 58, it is ORDERED that plaintiff PGA Capital LLC’s motion for an order pursuant to CPLR §3212 granting summary judgment pursuant to RPAPL 1501(1), canceling and discharging the easement and declaring that plaintiff holds legal title in fee simple absolute to 3485 Main Bayview Road, Southold, Suffolk County, New York free and clear from any easement, and declaring that defendants, and all persons or entities claiming under and/or acting in concert with defendants, are forever barred and precluded from asserting any claims to an easement in 3485 Main Bayview Road, Southold, Suffolk County, New York is granted; and it is further ORDERED that Clerk of the County of Suffolk is directed, upon the payment of the proper fees, if any, to cancel, discharge and remove the easement filed in the office of the Clerk of the County of Suffolk as against 3485 Main Bayview Road, Southold, Suffolk County, New York; and it is further ORDERED that plaintiff PGA Capital LLC’s motion pursuant to CPLR §3212 for a permanent injunction precluding defendants from asserting rights and interests in an easement in 3485 Main Bayview Road, Southold, Suffolk County, New York, is granted; and it is further ORDERED that plaintiff PGA Capital LLC’s motion for an order pursuant to CPLR §3212 granting summary judgment dismissing defendants’ affirmative defenses and counterclaim is granted. This is an action pursuant to article 15 of the Real Property Actions and Proceedings Law for the cancellation of an easement, and permanent injunction, barring claims to an easement on real property known as 3485 Main Bayview Road, Southold, Suffolk County, New York (“Lot 15.2″). Plaintiff PGA Capital LLC is the owner Lot 15.2, which is an improved waterfront lot that borders a canal with access to Goose Creek (“Lot 15.2″). Defendants Robert D. Toman and Susan Toman are the owners of 3795 Main Bayview Road, Southold, Suffolk County, New York (“Lot 13″). Defendants claim right to an easement over Lot 15.2. Prior to plaintiff’s purchase of Lot 15.2, both properties were owned by defendants: Lot 13 was purchased by defendants in January 2005, and Lot 15.2 was purchased in August 2005. In February 2009, while defendants were the sole owners of both Lot 15.2 and Lot 13, defendants purported to grant themselves an easement over Lot 15.2 to allow access the canal. Years later a foreclosure action was commenced in this Court related to defendants’ failure to make mortgage payments on Lot 15.2, which resulted in the Court granting judgment of foreclosure and sale by order dated February 27, 2018 (Heckman, J.) (see Deutsche Bank v. Toman, et al., Index No. 17760/2013). As a result of the foreclosure plaintiff purchased Lot 15.2 from the foreclosing bank and was in contract to re-sell Lot 15.2 when the purchaser canceled the contract as a result of defendants’ claim to an easement on the property. The within action was commenced by filing a summons and complaint on December 14, 2020. The complaint consists of two causes of action, the first to quiet title and seeking a declaratory judgment, the second cause of action for a permanent injunction precluding defendants from asserting any rights and interests in the alleged easement. Plaintiff’s then moved by order to show cause signed December 23, 2020 (Baisley, J.) for preliminary injunction (#001). Defendants appeared on February 26, 2021 by filing their verified answer consisting of general denials, six affirmative defenses that include failure to state a cause of action, and unclean hands, as well as a counter-claim for unjust enrichment. By letter dated March 11, 2021 plaintiff withdrew its order to show cause. Plaintiff now moves for summary judgment on its RPAPL 1501(1) claim and for permanent injunction (#002). Plaintiff seeks a determination canceling and discharging defendants’ alleged easement and a declaration that plaintiff holds title in fee simple absolute to Lot 15.2 free and clear from any easement of defendants. Plaintiff argues the easement is invalid because defendants could not have an easement in their own property. In addition plaintiff seeks an Order directing the Clerk of the County of Suffolk to cancel, discharge and remove the easement filed against Lot 15.2, and a permanent injunction precluding defendants from asserting rights and interests in the alleged easement, as well as dismissal of defendants’ affirmative defenses and counterclaim. In support plaintiff submits the pleadings, legal descriptions of Lot 15.2 and Lot 13, the alleged easement, and the affidavit of Keith Angerame, Esq., a member of plaintiff. In opposition defendants do not dispute that they were owners of both Lot 15.2 and Lot 13 at the time they executed the alleged easement in 2009, and fail to rebut the argument that as owners of both lots defendants could not effectuate a valid easement to themselves. Instead defendants argue among other things that questions of fact, and the doctrine of caveat emptor, preclude summary judgment. Defendants submit the affidavit of defendant Susan A. Toman in opposition to the motion. Ms. Toman states that Lot 15.2 has direct access to the canal and it was defendants intention to install a dock and related marine structures and eventually sell Lot 15.2. Ms. Toman further states that, as set forth in the easement, she and her husband and any subsequent owners of Lots 13 and 15.2 would share the costs of maintenance and upkeep for the dock, that they received approval for the dock in 2009 and recorded the easement that same year, and that defendants relied upon their attorney and the approvals of the Town of Southold and DEC to construct the dock and record the easement “as valid means to access the canal in the future once we were no longer owners of Lot 15.2.” The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions and unsubstantiated allegations are insufficient to raise a triable issue of fact (CPLR 3212 [b]; Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). It is well settled that a person cannot have an easement in his or her own land, since all of the uses of an easement are fully comprehended in his or her general rights of ownership (Will v. Gates, 89 NY2d 778, 658 NYS2d 900 [1997]; Parsons v. Johnson, 68 NY 62 [1877]; Town of Pound Ridge v. Golenbock, 264 AD2d 773, 773-74, 695 NYS2d 388, 389 [2d Dept 1999]). Thus the owner of a fee cannot create an easement in his or her own favor to exist during the time he or she is vested with the fee (see Beekwill Realty Corp. v. City of New York, 254 NY 423 [1930]; New York City Council v. City of New York, 4 AD3d 85, 770 NYS2d 346 [1st Dept 2004]). Plaintiff established a prima facie case of entitlement to summary judgment in its favor by demonstrating that at the time defendants granted themselves an easement in Lot 15.2 for the benefit of Lot 13, they were owners of both lots. In opposition defendants failed to raise a triable issue of fact. Here defendants admit to owning Lot 15.2 since August 2005, and admit that since January 2005 they also owned Lot 13 (Complaint at
