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Seetaram v Barukh 2008 NY Slip Op 33445(U) December 3, 2008 Supreme Court, Queens County Docket Number: 5012/2007 Judge: Orin R. Kitzes Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE ORIN R. KITZES Justice x IA Part 17

CAPILDEO SEETARAM - against DANIEL BARUKH, et al.

Index Number

5012

2007 2008

Motion Date September 17, Motion Cal. Number x Motion Seq. No. 1 60

The following papers numbered 1 to 12 read on this motion by defendants pursuant to CPLR 3212 for summary judgment in favor of defendant Daniel Barukh against plaintiff, dismissing the amended complaint asserted against them, and for a preliminary injunction enjoining plaintiff from obstructing defendant Barukh's use of the right of way created on the property known as Block #12056, Lot #119, Rockaway Boulevard, Queens, New York. Papers Numbered Order to Show Cause - Affidavits - Exhibits...... Answering Affidavits - Exhibits.................. Reply Affidavits................................. 1-6 7-9 10-12

Upon the foregoing papers it is ordered that the motion is determined as follows: Plaintiff commenced this action seeking to recover monetary damages, and costs and disbursements, including attorneys' fees. Plaintiff alleged that defendants trespassed onto his premises, causing damage to his real property, and committed slander of his title. Defendant Barukh served an answer denying the material allegations of the complaint, asserting affirmative defenses and interposing two counterclaims based upon alleged intentional and malicious conduct committed by plaintiff. Defendant Barukh alleged that he has a right to enter and use an easement burdening Lot #119, which easement was granted pursuant to a declaration dated September 7, 1923, and recorded in Liber 2543, page 385.

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Plaintiff served a reply denying the material allegations of the counterclaims. Plaintiff thereafter served an amended complaint, adding an allegation that any right of way claimed by defendants over his property has been extinguished, and alternatively, defendants have overburdened the right of way. Defendant Barukh served an amended answer without any counterclaims. To the extent defendant Capital One Construction, Inc. (Capital) seeks summary judgment dismissing the complaint asserted against it, Capital has failed to demonstrate issue has been joined with respect to it (see CPLR 3212[a]). No copy of an answer by defendant Capital has been provided to the court. That branch of the motion by defendant Capital for summary judgment dismissing the complaint asserted against it is denied. With respect to that branch of the motion by defendant Barukh for summary judgment in his favor against plaintiff, "[g]enerally, an amended complaint supersedes the original pleading, the defendant's original answer has no effect, and a new responsive pleading is substituted for the original answer (see Brooks Bros. v Tiffany, 117 App Div 470 [1907]; Rifkind v Web IV Music, 67 Misc 2d 26 [1971]; cf. Volpe v Manhattan Sav. Bank, 276 App Div 782 [1949]; see also 3 Weinstein-Korn-Miller, NY Civ Prac,

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