AM PROPERTIES, LLC vs. J&W SUMMIT AVE, LLC.

This action involves a dispute between Plaintiff AM Properties, LLC (“Plaintiff”) and Defendant J&W Summit Ave, LLC (“Defendant”) as to the ownership of the Strip [Note 1] (which is located along a common boundary between the parties’ properties), as well as the ownership and usage of the Passageway [Note 2] and the Summit Avenue Access [Note 3] to access the Strip. Plaintiff claims adverse possession of the Strip, while Defendant, in addition to opposing Plaintiff’s adverse possession claim, alleges that it has extinguished Plaintiff’s easements (the “Easements”) for use of the Passageway and the Summit Avenue Access.

Plaintiff filed its unverified Complaint on September 27, 2013, by which it sought (a) to establish title by adverse possession over the Strip pursuant to G. L. c. 240, §§ 5-10, and (b) a permanent injunction, pursuant to G. L. c. 185, § 1(k), enjoining Defendant from blocking Plaintiff’s easement rights to use the Passageway and Summit Avenue Access. On November 14, 2013, Defendant filed its unverified Answer and Counterclaims, which interposed two counterclaims, seeking (a) a declaratory judgment, pursuant to G. L. c. 231A, denying Plaintiff’s adverse possession claim relative to the Strip, and (b) to establish title by adverse possession over the Passageway and the Summit Avenue Access pursuant to G. L. c. 240, §§ 5-10. [Note 4] A case management conference was held on November 19, 2013. On November 29, 2013, Plaintiff filed its unverified Answer to Defendant’s Counterclaims.

On October 2, 2014, a status conference was held following the close of discovery, at which the court directed the parties to exchange statements of proposed undisputed facts to determine whether the case should be resolved bytrialor dispositive motion. On November 14, 2014, Defendant filed its statement of undisputed facts, together with an appendix of exhibits. On December 8, 2014, Plaintiff filed its response to Defendant’s statement of undisputed facts, its own statement of undisputed facts, and an appendix of exhibits. On December 12, 2014, a second status conference was held, at which the court set a briefing schedule for dispositive motions.

On January 23, 2015, Plaintiff filed its Motion for Summary Judgment, together with a supporting memorandum of law and an appendix containing affidavits of Alexander Zelfond (“Zelfond”) (Manager of Plaintiff), Mikhail Elbrus (“Elbrus”) (Manager of Arbat Engineering, Inc. (“Arbat”)), Marian Mogielnicki (“Mogielnicki”) (general contractor), Polina Mezheritskay (“Mezheritskay”) (employee at Bazaar [Note 5]), Roman Zadorozhnyy (“Zadorozhnyy”) (employee at Bazaar), Victor Sorici (“Sorici”) (employee at Bazaar), and Ann M. Sobolewski (“Sobolewski”) (Plaintiff’s counsel), as well as partial transcripts of the depositions of Zelfond, Steven Dannin (“Dannin”) (former property manager of Defendant’s property), and Stephen Springer (“Springer”) (certified land surveyor). On the same day, Defendant filed its Motion for Summary Judgment, together with a supporting memorandum of law and an appendix containing partial transcripts of the depositions of Zelfond, Dannin, and Springer. [Note 6] Plaintiff filed its opposition to Defendant’s motion on February 23, 2015. On the same day, Defendant filed its opposition to Plaintiff’s motion and a supplemental appendix containing an affidavit of William Adams (“Adams”) (Member of Defendant) and partial transcripts of the depositions of Dannin and Zelfond. Plaintiff filed its reply brief on March 13, 2015, together with a supplemental appendix containing a supplemental affidavit of Mogielnicki and partial transcripts of the depositions of Dannin and Adams. A hearing was held on both dispositive motions on March 23, 2015, and, at that time, the motions were taken under advisement.

The court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED that in order to establish title by adverse possession, Plaintiff must demonstrate continuous adverse use of the Strip starting on or before November 14, 1993; and,

ORDERED and ADJUDGED that IGF’s usage of the Strip can be attributed to the Lessor [Note 7] (as agent for the Singer Trust) for purposes of determining whether Plaintiff may tack its usage of the Strip onto that of the Singer Trust; and,

ORDERED and ADJUDGED that the tenancy relationship between IGF and the Singer Trust continued until Plaintiff purchased Plaintiff Property in 1999; and,

ORDERED and ADJUDGED that by purchasing Plaintiff Property from the Singer Trust, Plaintiff was in privity with the Singer Trust; and,

ORDERED and ADJUDGED that Plaintiff can tack its use of the Strip onto that of the Singer Trust for purposes of establishing adverse possession; and,

ORDERED and ADJUDGED that the conduct of IGF and Plaintiff evidences an intent to continue IGF’s tenancy at will at Plaintiff Property (which arose upon the expiration of the Lease), and thus that such tenancy was created upon Plaintiff’s purchase of Plaintiff Property [Note 8]; and,

ORDERED and ADJUDGED that the conduct of IVA and Plaintiff evidences an intent to create a tenancy at will for IVA’s use and occupancy of Plaintiff Property, which tenancy arose in April of 2000 and continues to this day [Note 9]; and,

ORDERED and ADJUDGED that in view of the tenancy relationship between IGF and Plaintiff, IGF’s use of the Strip from 1999 to 2000 (as tenant) is attributable to Plaintiff (as landlord); and,

ORDERED and ADJUDGED that Plaintiff, by tacking its own use of the Strip (through its implied tenancy relationships with IGF and IVA) to that of the Singer Trust (through its tenancy relationship with IGF), has satisfied the requirement of twenty years use of the Strip; and,

ORDERED and ADJUDGED that Plaintiff has established actual, open, and notorious use of the Strip for at least twenty years; and,

ORDERED and ADJUDGED that Plaintiff has established exclusive use of the Strip for at least twenty years; and,

ORDERED and ADJUDGED that Plaintiff has acquired title to the Strip by adverse possession; and,

ORDERED and ADJUDGED that the Easements have not been extinguished by abandonment; and,

ORDERED and ADJUDGED that Defendant, by its conduct, has not extinguished the Easements by hindering access across the Passageway and/or the Summit Avenue Access; and,

ORDERED and ADJUDGED that Defendant has not satisfied the twenty-year period to extinguish the Easements by adverse use; and,

ORDERED and ADJUDGED that the Easements have not been extinguished by adverse possession; and,

ORDERED and ADJUDGED that Defendant must remove the Guardrail from the Passageway and re-stripe the Parking Lot (and, if necessary, install a barrier) so as to ensure that parked cars do not park within the area of the Passageway or the Summit Avenue Access; and,

ORDERED and ADJUDGED that Plaintiff’s Motion for Summary Judgment is hereby ALLOWED in all respects; and,

ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is hereby DENIED in all respects, with prejudice.

By the court.