Scolaro, Shulman, Cohen, Lawler & Burstein, P. C., Syracuse (Neil M. Gingold of counsel), for plaintiff.
Frank J. Vavonese, Syracuse, for defendant.
William F. O'Brien, III, J.
In this action pursuant to article 15 of the RPAPL to compel the determination of claims to real property, plaintiff, Otis Marshall Farms, Inc., presently seeks summary judgment on the first cause of action in its complaint. The cause of action states that an agreement created in November of 1960 between defendant, Snyder Construction Co., and Curtis and Wava Roher allowing defendant to take gravel from a parcel of land owned at the time by the Rohers and subsequently transferred to plaintiff, subject to said agreement, violates EPTL 9-1.1 (a), which is the codification of the common-law Rule against Perpetuities. Defendant contends that its interest in plaintiff's land does not fall within the purview of EPTL 9-1.1 (a) and that the agreement should remain undisturbed.
Statement of Facts
Defendant obtained by deeded grant dated November 1, 1960, an exclusive right to " take, dig and remove gravel, topsoil and earth" from a parcel of land owned by Curtis and Wava Roher. The terms stated in the deed required defendant to make biannual payments of $500 to the Rohers and specified that the lease terms would continue so long as defendant was able to mine quantities of gravel sufficient to satisfy either New York State standards or defendant's specifications.
On June 25, 1980, the Rohers deeded their interest in the entire farm to plaintiff. The deed expressly provided that the sale was subject to defendant's right to take gravel from the portion of the farm's land lying west of the main barn and also reserved a life use for the Rohers of a dwelling house on the property.
Since the transfer of the property from the Rohers to plaintiff, the parties have coexisted in relative peace. Defendants have made payments to plaintiff under the terms of the
deeded interest, which payments were accepted by plaintiff. The present conflict appears to have developed from disputes over who may take gravel from what land on the farm, since both parties are engaged, to some degree, in the excavation business. [*]
In order to obtain summary judgment, it is necessary that the movant establish a cause of action or defense " sufficient[ ] to warrant the court as a matter of law in directing judgment" in its favor. (CPLR 3212 [b].) The initial burden is on the movant to demonstrate the absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. (Friends of Animals v Associated Fur Mfrs.,46 N.Y.2d 1065, 1067-1068 .) If the movant meets his burden, it becomes incumbent upon the nonmoving party to produce proof, in admissible form, that establishes the existence of triable facts. (Id.) It is significant to note that, in determining the relative success of the parties in meeting these burdens, plaintiff is entitled to have ...