Insight

IN PARTNERSHIP

A Street Fight in the Bronx

Adam Leitman Bailey’s firm helped settle a Bronx brawl over land between two parties and brought victory against a long-standing powerful family in New York.

Warehouse in New York at night
AB

Adam Leitman Bailey

May 22, 2023 04:00 PM

This matter came to Adam Leitman Bailey, P.C. (ALBPC) at the beginning of 2017. The resulting decision issued by the Appellate Division on March 9, 2023—six years later—shows how dogged investigation was important to finding the evidence necessary to persuade both the trial court and the appellate court to rule in favor of ALBPC’s client.

Close Avenue is a mapped but unopened and unpaved, one-block-long street in the Bronx, running north-south between Bruckner Boulevard and Storey Avenue. It is mainly used to facilitate access to and from the commercial warehoused businesses located along the block. Since the 1960s, there have been gates at both the North and South ends of the street, which are locked after business hours to prevent theft and vandalism.

Since 1999, the O’Farrell family, who operate a scaffolding business and who owns the two lots on opposite sides of the southern end of Close Avenue (the “900 Lots”), have controlled the Storey Avenue Gate (“Gate 1”) that controls ingress and egress to Close Avenue between the 900 Lots. In 2015, the O’Farrells installed a second gate (“Gate 2”) at the northern end of their two lots to control access to and secure that part of Close Avenue lying between their lots, to protect the trucks and equipment overnight.

The O’Farrells also own a lot on the eastern side of Close Avenue (the “950 Lot”) that is located immediately above the 900 Lot they own at the southern end of the block on the same side of the avenue.

This was a battle to the end. The adversary spent his life savings trying to beat our client, the O’Farrells, but no person’s life savings is enough to beat Adam Leitman Bailey P.C.’s premiere team of Bailey/Desiderio/Metz. "Even the now-retired head of a title insurance company told me (Bailey) that this would be our first losing case involving prescriptive easements. We slugged it out and gave it everything we had." War waged in the courthouse and disrupted the peaceful Bronx. Even the CIA and Defense Contractors became part of the story. "On a personal note, I am very proud to work with these legendary lawyers. This was a case we were supposed to lose. Heart won out. I never had any doubts. Not for a minute," noted Adam Leitman Bailey.

All the remaining lots on Close Avenue between the O’Farrells’ properties and the northern end of Close Avenue are owned by Ciminello Property Associates (CPA). All of the CPA properties on Close Avenue are rented to CPA tenants.

For many years, the O’Farrells permitted CPA’s tenants to use the eastern half of Close Avenue abutting the O’Farrells’ 950 Lot. However, after Gate 2 was installed, CPA objected to certain Jersey barriers the O’Farrells had installed alongside the 950 Lot, claiming that the barriers obstructed the access of its commercial tenant, who rented the property across from the 950 Lot.

CPA then sued the O’Farrell companies, which own the 950 Lot and the two 900 Lots, and sought a declaratory judgment that Ciminello had either an implied or prescriptive easement over the full length and width of Close Avenue.

A prescriptive easement is the right to use and pass over land to another property or public thoroughfare after having done so, without permission, for a ten-year period without interruption. The courts hold that the principles for acquiring title to the property by adverse possession are analogous to acquiring a prescriptive easement, except that there is no requirement for the claimant to prove exclusive use during the ten-year prescriptive period.

CPA based its claim on its predecessor owner’s control of the avenue and CPA’s purported use and maintenance of the whole length of the avenue from as early as the 1970s and that the O’Farrells essentially were Johnny-come-lately interlopers who were preventing CPA’s tenants from the free use and access of Close Avenue to carry on their businesses.

In addition to seeking compensatory and punitive damages for alleged trespass, CPA asked the Court to permanently enjoin the O’Farrells from placing physical impediments or otherwise interfering with the ability of CPA, its tenants and their respective invitees and guests to make use of Close Avenue to its full length and width, or to otherwise interfere with CPA’s easement in, upon, over and through Close Avenue.

Despite CPA’s claim that it controlled the use of Close Avenue and that CPA had been solely responsible for maintaining the Close Avenue roadbed and for snow removal for more than 30 years before the O’Farrels acquired their Close Avenue properties, the O’Farrells were able to produce evidence refuting CPA’s claims.

CPA initially moved for a preliminary injunction to enjoin the O’Farrell’s control of Gates 1 and 2. However, the trial court ruled that “CPA’s evidence ‘falls far short of establishing a prescriptive easement by clear and convincing evidence.’” The trial court held that “a review of all of the evidence shows that CPA’s use of the purported easement was not hostile but appears to have been permitted as a matter of neighborly accommodation.”

The trial court’s ruling denying the grant of a preliminary injunction was affirmed on appeal. The Appellate Division ruled that CPA had “failed to demonstrate a likelihood of success on the merits.”

The parties then engaged in extensive discovery proceedings. Longtime residents and business owners from the local community testified that prior to the installation of gates at the northern and southern ends of Close Avenue, the avenue had been freely accessed by the public, including commercial traffic, drug dealers, prostitutes and derelicts. CPA was unable to produce evidence rebutting the community witnesses and could not produce any evidence to support its own claimed easement over the avenue. Indeed, CPA’s own commercial tenant testified that its access from Storey Avenue was essentially permissive access given by the O’Farrells to facilitate the tenant’s use of the Storey Avenue Gate.

At the conclusion, the O’Farrells moved for summary judgment, and the trial court granted the motion.

CPA appealed again to the Appellate Division, which, in affirming the trial court’s grant of summary judgment to the O’Farrells, held that CPA “failed to establish the requisite elements of exclusivity and hostility required for a prescriptive easement,” and that “the record on summary judgment reflects that, since at least 1999, [the O’Farrells] had controlled access to the south gate at Storey Avenue, and that [CPA] and its tenants’ use of the disputed portion of Close Avenue had been permissive. The testimony of [CPA’s] tenants further established that they permitted members of the general public to access Close Avenue and traverse the south gate during regular business hours by using the keys obtained from the [O’Farrells].”

When CPA made its first objections to the O’Farrells’ control of access to Close Avenue from Storey Avenue, the O’Farrells brought their problem to Adam Leitman Bailey, P.C., and Adam Leitman Bailey, P.C. advised that, in order to refute CPA’s claimed easement, it was imperative to find long term members of the community who could recollect how Close Avenue had been used by business and members of the public over the past 40 years. Fortunately, there were members of the public with strong ties to the local community who were willing to truthfully recount their memories of what had occurred on Close Avenue.

The Adam Leitman Bailey attorneys who worked on this matter over the years were: Adam Leitman Bailey, John M. Desiderio and Jeffrey R. Metz.

Headline Image: iStock/ passigatti

Related Articles

IN PARTNERSHIP

Heroes Among Men: How Adam Leitman Bailey, P.C. Saved Lives of the Lifesaving


by Rebecca Blackwell

When a 911 Center in New York City was put in danger, Adam Leitman Bailey, P.C. went to work against the unlawful and hazardous actions of a developer whose construction threatened the peace and safety of all who worked for the Fortune 500 company.

Danger construction site no trespassing sign on fence

IN PARTNERSHIP

Adam Leitman Bailey Saves Upper East Cooperative From Forced NYU Combination With Neighboring University Building


by Rebecca Blackwell

When a New York resident of an iconic building was faced with a potentially devastating renovation to his beloved home, powerhouse real estate lawyer Adam Leitman Bailey tightened the knot on the loophole others said didn’t exist.

Large brownstone building with blue sky above in New York City

IN PARTNERSHIP

How To Run a Board Meeting


by Adam Leitman Bailey

Adam Leitman Bailey explains how using Robert's Rules of Order can assist with effective and productive board meetings in real estate matters.

Several people sitting in chairs around boardroom table

IN PARTNERSHIP

The Wolf Near Wall Street


by Rebecca Blackwell

When tensions among shared real estate owners reached their tipping point, Adam Leitman Bailey P.C. stepped in and solved a modern issue with an ancient remedy.

Mortgage documents on desk

IN PARTNERSHIP

Foiled Plans: How Adam Leitman Bailey, P.C. Thwarted A Famous Building’s Trickery


by Rebecca Blackwell

When the Frick building, planned renovations that would threaten the welfare of nearby residents, Adam Leitman Bailey, P.C. jumped in to uncover the truth.

Front of the Frick Building in New York City

Client Service in Real Estate Law: Identifying Attorneys Who Truly Care


by Best Lawyers

What is client service in real estate law, and why is it important? Learn more about the value a real estate lawyer who emphasizes client service can provide.

Two unseen individuals shake hands with miniature house models in background

4 Essential Steps for Commercial Real Estate Due Diligence


by Best Lawyers

Due diligence in real estate is essential for all parties. Best Lawyers walks through the key steps of effective due diligence in commercial real estate.

Animated magnify glass in front of building and checklist

The Role of Title Insurance in Real Estate Transactions


by Best Lawyers

Title insurance can provide benefits, protection and peace of mind in a real estate transaction, which can often be complex. Best Lawyers take a closer look.

Individual signing a document with house keys in background

Leasing Commercial Real Estate


by Best Lawyers

We have compiled this “leasing commercial real estate checklist” to help guide discussions with a commercial real estate lawyer before signing a lease.

Unseen figure with pen points to apartment building model

IN PARTNERSHIP

Residential Real Estate Slowdown Expected To Continue in 2023


by Mick Harris

Rising housing costs and mortgage rates were becoming the norm in 2022. Experts anticipate that 2023 may show much of the same.

Apartment buildings with yellow haze

IN PARTNERSHIP

What is The Grieving Families Act (2022)?


by Michael L. Taub

Best Lawyers honoree Michael Taub explains The Grieving Families Act and what it means for wrongful death and malpractice cases in New York.

Image of grieving person on blue background

IN PARTNERSHIP

Results That Make a Difference


by John Fields

Thomas Moore and Judith Livingston continue to secure some of the largest verdicts in New York state for their injured clients.

Male and female lawyer in blue suits

East Side Story


by Adam Leitman Bailey

The made-for-Hollywood tale of a 16-year legal tussle to help a dedicated band of Manhattan “homesteaders” take ownership of the buildings they had moved into and begun to rehab.

Rosario Dawson's Family Fight for NY Building

House Trap


by Heidi E. Storz

Special districts are often being used as profit centers that leave residents to foot the bill. These homeowners deserve protection from unscrupulous developers who attempt to fleece them and avoid accountability.

Special Districts Changing Property Ownership

IN PARTNERSHIP

Should I Hire a Lawyer After a Car Accident in Lawrenceville?


by Yari D. Lawson

If you or a loved one have suffered from a crash, here’s why hiring a car accident lawyer in Lawrenceville, GA, is a good idea to ensure you get compensation.

First responders assessing a car accident scene

"Lawyer of the Year"


Lawyer with suit posing and smiling for headshot

Laurie R. Bishop

Education Law

Boston, MA

2024

Trending Articles

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky

Presenting The Best Lawyers in Australia™ 2025


by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Best Lawyers Expands Chilean 2024 Awards


by Best Lawyers

Best Lawyers is pleased to announce the 14th edition of The Best Lawyers in Chile™ and the inaugural edition of Best Lawyers: Ones to Watch in Chile™, honoring the top lawyers and firms conferred on by their Chilean peers.

Landscape of city in Chile

Best Lawyers Expands 2024 Brazilian Awards


by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Brazil™ and the first edition of Best Lawyers: Ones to Watch in Brazil™.

Image of Brazil city and water from sky

Announcing The Best Lawyers in South Africa™ 2024


by Best Lawyers

Best Lawyers is excited to announce the landmark 15th edition of The Best Lawyers in South Africa™ for 2024, including the exclusive "Law Firm of the Year" awards.

Sky view of South Africa town and waterways

The Best Lawyers in Mexico Celebrates a Milestone Year


by Best Lawyers

Best Lawyers is excited to announce the 15th edition of The Best Lawyers in Mexico™ and the second edition of Best Lawyers: Ones to Watch in Mexico™ for 2024.

Sky view of Mexico city scape

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Portugal™ 2024


by Best Lawyers

The 2024 awards for Portugal include the 14th edition of The Best Lawyers in Portugal™ and 2nd edition of Best Lawyers: Ones to Watch in Portugal™.

City and beach with green water and blue sky

The Best Lawyers in Peru™ 2024


by Best Lawyers

Best Lawyers is excited to announce the landmark 10th edition of The Best Lawyers in Peru, the prestigious award recognizing the country's lop legal talent.

Landscape of Peru city with cliffside and ocean

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

Presenting the 2024 Best Lawyers Family Law Legal Guide


by Best Lawyers

The 2024 Best Lawyers Family Law Legal Guide is now live and includes recognitions for all Best Lawyers family law awards. Read below and explore the legal guide.

Man entering home and hugging two children in doorway

The Best Lawyers in Colombia™ 2024


by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Colombia™ for 2024, which honors Colombia's most esteemed lawyers and law firms.

Cityscape of Colombia with blue cloudy sky above

Announcing the 2024 Best Lawyers in Puerto Rico™


by Best Lawyers

Best Lawyers is proud to announce the 11th edition of The Best Lawyers in Puerto Rico™, honoring the top lawyers and firms across the country for 2024.

View of Puerto Rico city from the ocean

Announcing The Best Lawyers in Japan™ 2025


by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

Announcing The Best Lawyers in New Zealand™ 2025 Awards


by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Canada Makes First Foray Into AI Regulation


by Sara Collin

As Artificial Intelligence continues to rise in use and popularity, many countries are working to ensure proper regulation. Canada has just made its first foray into AI regulation.

People standing in front of large, green pixelated image of buildings