Issues in Establishing an Easement Over Real Property

Law school real property textbooks abound with cases addressing adverse possession, right-of-way disputes and various types of easements (prescriptive, of necessity, and otherwise). Contemporary decisions still address those usual generic, threshold issues, but also the more granule issues of the location, size and permitted uses of easements, rights of way. Several recent examples follow.

DiDonato v. Dyckman, 2018 NY Slip Op 08113, App. Div. 2^nd Dept. (November 28, 2018)

The Supreme Court denied the plaintiff’s motion for summary judgment on the amended complaint and granted defendants’ cross-motion for summary judgment declaring that the plaintiff was not entitled to an expansion of an easement.

Appellate Division summarized the facts:

The plaintiff and the defendants own abutting lots located in Mahopac. The plaintiff’s property benefits from an easement by grant dated April 1, 1964, which is a right-of-way along a private, 12-foot-wide surfaced road located on the defendants’ property, for ingress and egress between the plaintiff’s property and Highland Road. The plaintiff commenced this action seeking, inter alia, a judgment declaring that she had the exclusive right of ingress and egress over the easement.

The prior proceedings:

In September 2015, the plaintiff moved for summary judgment on the amended complaint, arguing, in effect, that the language of the express easement should be amended to include certain curves in the right of way that were necessary to permit utility and delivery trucks to access the plaintiff’s property. The plaintiff argued that she had obtained a prescriptive easement over the portions of the defendants’ property which underlaid the proposed curves. The defendants cross-moved for summary judgment declaring that the plaintiff was not entitled to an expansion of the easement, by prescription or otherwise. In an order dated April 7, 2016, the Supreme Court denied the plaintiff’s motion and granted the defendants’ cross motion. The plaintiff appeals from both the order dated July 30, 2015, and the order dated April 7, 2016.

The legal template:

“Easements by express grant are construed to give effect to the parties’ intent, as manifested by the language of the grant”…”The extent of an easement claimed under a grant is generally limited by the language of the grant, as a grantor may create an extensive or a limited easement”…“Where, as here, an easement provides for the ingress and egress of motor vehicles, it is granted in general terms and the extent of its use includes any reasonable use necessary and convenient for the purpose for which it is created”[.]

“An easement by prescription may be demonstrated by clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period”[.]

Concluding that:

Here, the plaintiff failed to establish, prima facie, that she was entitled to an amendment of the language of the express easement, or that she had a prescriptive easement over a portion of the defendants’ property. Accordingly, we agree with the Supreme Court’s denial of the plaintiff’s motion for summary judgment, regardless of the sufficiency of the defendants’ opposition papers[.]

However, the Supreme Court should have denied the defendants’ cross motion for summary judgment declaring that the plaintiff was not entitled to an expansion of the easement. The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by conclusively negating any one of the elements of an easement by prescription which, if proven at trial, would warrant the recognition of an easement by prescription over the relevant portions of the defendants’ property[.]

Rosenzweig v. Howlan, 2018 NY Slip Op 07394, App. Div. 3^rd Dept. (November 1, 2018)

Supreme Court found that plaintiffs were entitled to a prescriptive easement to use an entire right of way.

The Appellate Division summarized the facts:

In 1966, plaintiffs’ parents purchased property on Lampman Road in the Town of Broadalbin, Fulton County. In 1995, plaintiff Martin A. Rosenzweig became the owner of a parcel of that property on which he had been residing with his mother. His sister, plaintiff Lois J. Rosenzweig, returned to the area in 1990 and obtained ownership of a parcel of property from her mother in 1996. Between the parcel owned by Martin Rosenzweig and the parcel owned by Lois Rosenzweig is an approximately 30-foot-wide strip of land (hereinafter the right-of-way) owned by defendant. The right-of-way contains a crushed stone driveway extending 100 feet from, and perpendicular to, Lampman Road, then another 200 to 250 feet of grassy area, before connecting to a 33-acre wooded parcel owned by defendant. Plaintiffs used the driveway to access their homes and a garage, and parked adjacent to it.

The pleadings and prior proceedings:

In 2013, after defendant attempted to prevent plaintiffs from using the right-of-way, Martin Rosenzweig commenced this action pursuant to RPAPL article 15 seeking, among other things, a declaration that he possessed title to the right-of-way by adverse possession. He later filed an amended complaint that added his sister as a plaintiff and sought a declaration that they are fee owners of the right-of-way or, alternatively, a declaration that they have a prescriptive easement over the right-of-way. After plaintiffs rested their case at the end of the first day of a bench trial, they moved for a directed verdict or, in the alternative, to amend the pleadings to conform to the proof regarding a prescriptive easement. Supreme Court reserved decision, but eventually granted the motion to amend. After defendant presented his evidence and the parties submitted closing arguments, the court, among other things, granted plaintiffs a prescriptive easement over the crushed stone driveway and the entire right-of-way[.]

The legal template:

Supreme Court did not err in granting plaintiffs a prescriptive easement over the right-of-way. “A party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years”…Once the other elements are established, “hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive”…”However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise”[.]

The testimony in the Court below:

Testimony from plaintiffs, a neighbor, defendant and defendant’s predecessor-in-interest established that plaintiffs used the crushed stone driveway to gain access to their property daily for more than 20 years. All witnesses were aware that Martin Rosenzweig plowed the driveway in the winter. Plaintiffs testified that one or both of them maintained the right-of-way by adding rubble and crushed stone to the driveway when needed (approximately 10 times over the years), planting flowers along the driveway, rolling the area beside the driveway to level it, weed-whacking and mowing the entire right-of-way. Martin Rosenzweig testified that he installed a mailbox just inside the right-of-way 15 years earlier and erected a basketball hoop and light pole within the right-of-way many years earlier. Both plaintiffs testified that they never asked anyone for permission to use or improve the right-of-way, and they used it without incident until 2013.

Defendant testified that, when he first bought his property in 1995, he gave plaintiffs permission to use the right-of-way. He acknowledged that, in 2013, he sent Martin Rosenzweig a letter in which he recited that, in 1997, his attorney had sent Martin Rosenzweig a certified letter telling him to keep off defendant’s property, and that Martin Rosenzweig had signed for that letter. No such 1997 letter was admitted into evidence, and defendant questioned whether his attorney had actually written or sent one. Defendant stated that he wanted plaintiffs to keep off his property in 1997, but he then gave them permission to use it again until 2013. When questioned about how he expressed his renewed permission, defendant responded that it was given by him not doing anything to keep plaintiffs off his property. Defendant also testified that he had almost no interaction with plaintiffs. After an incident in 2013 in which Martin Rosenzweig was allegedly on defendant’s property beyond the right-of-way without permission, defendant called the police on him several times per week for months.

Concluding that:

The evidence established that plaintiffs used and maintained the right-of-way openly and notoriously for a period well in excess of 10 years. That use extended beyond the driveway to the entire right-of-way. Inasmuch as the evidence demonstrated a lack of neighborly accommodation between the parties, the element of hostility can be presumed…Supreme Court, after finding that defendant’s credibility was called into question by inconstancies in his testimony and a felony conviction for insurance fraud, reasonably concluded that defendant did not give permission for plaintiffs to use the right-of-way, at least between 1997 and 2013. Thus, defendant failed to meet his burden to rebut the presumption of hostility. Accordingly, plaintiffs proved by clear and convincing evidence that they were entitled to a prescriptive easement to use the entire right-of-way[.]

Kuzmicki v. Bentley Yacht Club, 2018 NY Slip Op 51574(U), Sup. Ct. Richmond Co. (November 9, 2018)

Plaintiff brought an action against defendants for trespass and for an order permanently enjoining defendants from trespassing upon her property.

The Court described the pending motion:

The plaintiff, Kuzmicki, now moves by Order To Show Cause to temporarily and/or preliminarily restrain defendants, Kevin Hartnett, Casey Robisky, Edward Robisky, and Brian Sullivan from entering, using or traversing her property pending disposition of this action[.]

The defendants, Casey Robisky and Edward Robisky separately move for summary judgment to dismiss the complaint and for an order granting an easement upon the plaintiff’s property.

The facts:

Plaintiff Angela Kuzmicki owns property abutting the water at 99 Hopping Avenue, Staten Island, New York. The defendants, Casey Robisky and Edward Robisky…own and occupy the neighboring waterfront property located at 91 Hopping Avenue. The Bentley Yacht Club is also located at and operated from the Robisky’s property at 91 Hopping Avenue. The Bentley Yacht Club provides a marina for its members to moor their individual vessels and promote the sport of yachting or boating. Over the years, the plaintiff had a verbal agreement with Bentley Yacht Club and its members whereby club members were permitted to enter plaintiff’s property for the purpose of launching their vessels from her boat slip in the spring and permitting them to retrieve their vessels at the end of the boating season.

The individually named defendants in this action appear to be members of the Bentley Yacht Club who have allegedly trespassed upon the plaintiff’s property and whom plaintiff seeks to temporarily and ultimately to permanently restrain from entering upon her property.

The previous lawsuit:

A prior lawsuit was brought before this court where Bentley Yacht Club sought an order preventing Kuzmiki from blocking members’ access to a boat ramp at the rear of her property. In that case, this court held that Bentley Yacht Club had not established entitlement to an easement upon plaintiff’s property. Specifically, this court denied Bentley Yacht Club’s motion to grant an easement over Plaintiff’s property to access the boat ramp[.]

The pending motion:

[Kuzmicki also moves] for a temporary and preliminary order restraining all defendants from entering, using or traversing her property, pending the disposition of this action. The Robisky defendants oppose this branch of the Order to Show Cause and move for summary judgment and for an order granting an easement for ingress and egress over the plaintiff’s property.

Defendants’ contentions:

The Robisky defendants, who own 91 Hopping Avenue, claim that they have a 35 foot boat, which they have no way to launch but by traversing plaintiff’s property located at 99 Hopping Avenue.

The Robisky defendants assert that at one time, both properties at 91 Hopping Avenue and 99 Hopping Avenue were owned by Lenora Jolene. It is further claimed, that because prior and current owners at 91 Hopping Avenue, such as Mr. Wetherill who sold to the Robisky defendants, were permitted…to utilize a portion of 99 Hopping Avenue to launch boats, that Jolene must have intended this use to be permanent. Therefore, based upon such past use, it is claimed that an easement by implication and/or an easement by prescription and/or an easement by necessity arose. The Robisky defendants also rely upon a land grant as proof of this intent. The Robisky defendants further rely upon the doctrine of jus publicum in an attempt to establish that defendants, as members of the general public, are entitled to use her property between the high and low water marks.

Plaintiff’s opposition:

In opposition, the plaintiff asserts that she owns her property in fee, including the land between the high and low water marks, without restriction. A deed and survey are submitted establishing her ownership to the bulkhead line without restriction. Plaintiff also relies upon this court’s prior decision which held that prior use of plaintiff’s property was solely permissive and further that no easement existed in favor of the Bentley Yacht Club.

Concluding that:

For the reasons set forth herein, the plaintiff’s Order To Show Cause is granted and the Robisky Defendant’s motions are denied.

An easement by prescription is demonstrated by proof of an adverse, open and notorious continuous and uninterrupted use of the property for the prescriptive period…Here, even assuming that the Robisky defendants established that their use of the plaintiff’s property was open, notorious, continuous and undisputed, such evidence was insufficient to rebut the fact that the property use was not hostile, but was permitted as a matter of neighborly accommodation…Therefore, there is no proof of existence of a prescriptive easement.

The Robisky defendants also seek summary judgment predicated upon an easement by necessity. The party asserting that it has an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity of title and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party’s land. The necessity must exist in fact and not as a mere convenience. The necessity required for an easement by necessity must be indispensable to the reasonable use of the adjacent property…The Robisky defendants established only that they utilized the plaintiff’s property during certain times of the year for the purpose of launching their boat. Defendants are not entitled to an easement by necessity because accessing the water through the plaintiff’s property certain months of the year is not indispensable to the reasonable use of the property and is nothing more than a mere convenience for purposes of the sport of boating…Nor is their proof that at the time of separation of the properties, such an easement was necessary or had been in existence.

In order for an easement by implication from pre-existing use to exist, there must be three elements: (1) unity and subsequent separation of title; (2) the claimed easement must have, prior to separation, been so long continued and obvious as to show that it was meant to be permanent; and (3) the use must be necessary for the beneficial enjoyment of the land retained…As the Robisky defendants assert, the necessity for an easement by implication based upon preexisting use is only reasonable necessity, in contrast to the absolute necessity required to establish an easement by necessity…Nevertheless, under either theory, mere convenience is not sufficient to establish necessity…Moreover, there is no proof of the second element, namely proof of such a long continued use prior to separation of title.

Lastly, there is no easement upon the plaintiff’s property in favor of the general public, which would include the defendants…[A] grant of land under navigable water containing no restrictions constitutes an unqualified grant of fee therein, and is not subject to any easement in favor of the public. The plaintiff owns her property in fee without any restrictions in favor of the general public.

Serafin Props., LLC v. Amore Enters., Inc., 2018 NY Slip Op 50142(U), Sup. Ct. Erie Co. (February 6, 2018)

Serafin Properties sued to establish a prescriptive easement over a portion of an adjoining property owned by Amore Enterprises, Inc.

The undisputed facts:

Plaintiff owns commercial real property located at 4388 Broadway, in the Village of Depew, New York[.]
Defendant owns commercial real property at 4396 Broadway, in the Village of Depew, New York[.]
The parties’ respective properties abut each other, and are located in a small industrial park consisting of four (4) commercial parcels; that is, their respective properties and two (2) others that are owned by non-parties (the Industrial Park)[.]
Plaintiff purchased Plaintiff’s Property on January 1, 2007 from its affiliate, QMC Technologies, Inc.[.]
Defendant purchased Defendant’s Property in June 1997[.]
The properties’ respective boundaries are not in dispute[.]
The dispute in this matter arises out of Plaintiff’s use of an approximate 30 foot strip of Defendant’s Property (the Driveway). Plaintiff seeks a prescriptive easement in the Driveway[.]
Plaintiff’s Property is not land-locked, and Plaintiff has access to it without having to use the Driveway[.]
QMC purchased Plaintiff’s Property from Allied Building Products, Inc. (Allied) in September 2005. The purchase and sale contract between QMC and Allied provides that there are no unrecorded liens, easements, rights of way, licenses, restrictions, or other encumbrances affecting the property[.]
There is no survey that depicts an easement in the area of the Driveway[.]

Both parties moved for summary judgment.

The Court determined that:

Plaintiff bears the initial burden of showing, by clear and convincing evidence, that its use was `adverse, open and notorious, continuous, and uninterrupted for the prescriptive period,’ which is ten (10) years…; and
Where the party seeking a prescriptive easement establishes an open, notorious, and continuous use of property for the prescriptive period, a presumption arises that such use was hostile. Where the presumption of a hostile use arises, the burden shifts to the owner of the servient estate — here Defendant, to show that the use was permissive. The presumption of hostility has arisen in this matter[.]

And the Court also previously concluded that:

Having further found that “[m]aterial issues of fact exist regarding whether Plaintiff’s use of the Driveway during the prescriptive period was hostile or permissive”…the Court directed that “the sole issues to be tried are whether Plaintiff’s use of the Driveway was hostile or permissive during the prescriptive period, and, if the Court finds and declares that a prescriptive easement has been established, the amount Defendant shall be compensated for Plaintiff’s past and future use of the Driveway”[.]

The action proceeded to a bench trial during which the Court heard testimony from nine witnesses and admitted 78 exhibits over three days.

As to whether or not the use of the driveway was hostile or permissive:

The Court denied the parties’ respective dispositive motions, because the resolution of whether Plaintiff’s use of the Driveway was hostile or permissive “lies largely with the Court’s assessment of the credibility of party witnesses, which precludes the granting of summary judgment to either party[.]

The Court finds the trial testimony of Defendant’s President, Gaetano ModicaAmore, to be particularly credible on the issue of use. In this regard, Mr. ModicaAmore testified as follows:

He understood that George K. Hambelton, Jr., predecessor in interest of Defendant’s Property, had given permission to the Plaintiff’s predecessor in interest to access the Driveway[;]
Prior to purchasing Defendant’s Property, he attended a meeting of the Village of Depew Village Board regarding an occupancy permit, at which representatives of other members of the Industrial Park were present. At that meeting, Mr. ModicaAmore confirmed that, upon purchasing Defendant’s Property, he would continue to permit the other members of the Industrial Park to use the Driveway, like they had been using it . . . [a]s long as there was some camaraderie, some chipping in of . . . what needed to be done to repair it[.]
In approximately 2010 or 2011 (several years after Plaintiff purchased Plaintiff’s Property), Mr. ModicaAmore had a conversation with James Serafin, Plaintiff’s President, and participated in a meeting with Mr. Serafin and representatives of other businesses in the Industrial Park, at which time Mr.ModicaAmore confirmed that Plaintiff’s predecessor in title had been permitted to use the Driveway, because it assisted with snow removal and maintenance, and that Plaintiff would be permitted to continue to use the Driveway under the same conditions[.]

Mr. ModicaAmore’s testimony regarding the historical use of the Driveway was consistent with the following testimony of non-party members of the Industrial Park:

Peter Gaglio was employed by Keystone Builders Supply Company, Inc.…from 1992 through approximately 2002 or 2003…Keystone is a predecessor in title to Plaintiff’s Property…and while employed by Keystone, Mr. Gaglio worked at the site that is now Plaintiff’s Property…With respect to the Driveway, Mr. Gaglio testified that there were no disputes over it and that all of the businesses within the Industrial Park used it amicably[.]
Mark LaPenta was employed by Quality Inspection Services…one of the other businesses located at the Industrial Park from November 5, 2004 through July 31, 2015…Mr. LaPenta was employed by QIS at the Industrial Park from approximately 2004 to 2013…QIS owned a strip of land approximately 12 feet wide, which was adjacent to the Driveway…Mr. LaPenta testified that QIS owned such 12 foot strip, Defendant owned the Driveway, and all of the other businesses in the industrial park were permitted to use these adjacent parcels as a courtesy and [t]hat’s what we just always agreed upon[.]

Finding that Serafin did not have an easement and concluding that:

Nonparty witnesses’ use of words and phrases like “no disputes over it” (Mr. Gaglio), and “courtesy” and “agreed upon” (Mr. LaPenta), connote a permissive — not hostile, use, and are consistent with Mr. ModicaAmore’s testimony.

The determination of credibility in a non-jury trial shall be left to the Court’s discretion… [where the findings of fact in a non-jury trial rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court’s credibility determinations]). The Court had an opportunity to observe Messrs. ModicaAmore, Gaglio, and LaPenta testify at trial, and they all appeared credible and to be testifying truthfully.

Moreover, Mr. ModicaAmore’s (and Messrs. Gaglio’s, and LaPenta’s) testimony is also consistent with the letter from Mr. Hambleton’s attorneys (Magavern, Magavern & Grimm) to Ward Sievenpiper, President of Doralco, Inc. (predecessor in interest to Plaintiff’s Property), dated January 11, 1995. This letter constitutes objective, credible evidence that Mr. Sievenpiper’s use of the Driveway was permissive. It states in relevant part, that:

As you know, our client has allowed you and your tenants to use a portion of this driveway for ingress and egress . . . [and] [w]e want to reiterate and make clear that there is no easement benefitting the property at 4388 Broadway [i.e., Plaintiff’s Property] over Mr. Hambleton’s lands [i.e., Defendant’s Property’]”[.]

101 H 216 Lafayette, LLC v. J&G Family L.P., 2018 NY Slip Op 33107, Sup. Ct. N.Y. Co. (December 4, 2018)

Supreme Court, addressing cross-motions for summary judgment in an easement agreement dispute, summarized the facts:

Plaintiffs are the owners of the building located at 216 Lafayette Street, New York, New York…Defendant J&G Family Limited Partnership…is the owner of the adjoining building located at 218 Lafayette Street, New York, New York…Defendant 218, LLC…is a tenant at the 218 parcel. 218 Tenant operates the Osteria Morini restaurant…at the 218 parcel.

J&G leased space inside the 218 parcel to Altamarea Group, LLC pursuant to a lease dated January 6, 2010…On April 29, 2010, AG assigned the 218 lease to 218 Tenant. Tenant decided to expand the restaurant from the 218 parcel to include the 216 parcel. In connection with this expansion, 218 Tenant entered into a lease agreement dated February 25, 2011 with plaintiffs’ predecessor in-interest Martha Schwartz…for certain ground floor, basement, and second floor space at the 216 parcel.

On June 30, 2011, as provided for in the 216 lease, Schwartz and J&G executed an easement agreement…granting certain rights to 218 Tenant. On September 14, 2012, the original easement was superseded by an amended and restated party wall easement agreement…The easement agreement granted 218 Tenant the following easement (the easement):

1) the right to open a portion of the party wall between the 216 parcel and the 218 parcel to allow a pass-through;

2) a right of access for ingress and egress by Tenant . . .; and

3) a right to access a lavatory which was compliant with the Americans with Disabilities Act[.]

On October 18, 2012, the easement agreement was filed with the Office of the City Register.

In August 2013, 218 Tenant assigned the lease for the 216 parcel to its affiliate, OM 216, LLC…Pursuant to the 216 lease, there was an option to terminate if the restaurant could not be expanded to the 216 parcel. In November 2015, OM 216 notified Schwartz of its election to vacate the 216 parcel effective January 15, 2016. By letter dated January 14, 2016 OM 216 turned over possession of the 216 parcel to Schwartz.

On June 5, 2017, plaintiffs purchased the 216 parcel from Schwartz[.]

Plaintiff’s motion:

Plaintiffs move…for partial summary judgment on the first, fifth, and sixth causes of action in their complaint; for an order setting the matter down for a hearing on plaintiffs’ monetary claims; and dismissing defendants’ affirmative defenses. Plaintiffs seek an order directing the entry of judgment for the plaintiffs and against defendants declaring the following:

the [e]asement is invalid against the 216 [p]arcel and that the recording of the [e]asement over the 216 [p]arcel shall be immediately withdrawn[,] and [p]laintiff[s] hold legal tittle to the 216 parcel free and clear of the [e]asement…;
J&G had no use rights under the [e]asement and that to the extent 218 Tenant ever had any use rights under the [e]asement, such rights expired upon termination of the 216 [l]ease and that the recording of the [e]asement over the 216 [p]arcel shall be immediately withdrawn…;
[p]laintiff[s] may immediately close the opening which adjoins the cellar of the 216 [p]arcel with the cellar of the 218 [p]arcel and remove and dispose of any installations made in the 216 [p]arcel, including the Corridor[.]

Defendants’ cross-motions:

Defendant 218 Tenant opposes plaintiffs’ motion and cross moves…for summary judgment dismissing plaintiffs’ complaint as against it. Defendant J&G separately opposes plaintiffs’ motion and cross moves for an order granting declaratory judgment interpreting the terms of the easement agreement in favor of J&G, and, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs’ complaint.

Plaintiff’s argument:

Plaintiffs argue that the easement was created solely for the use of an operation of a full-service restaurant on the 216 parcel in accordance with the terms of the 216 lease, and that when OM 216 elected to terminate the 216 lease, the purpose for which the easement was created ceased to exist, thereby extinguishing the easement. Plaintiffs also argue that 218 Tenant had no rights to the easement as a third-party beneficiary and J&G has no right to use the easement. Defendants contend that the claims against 218 Tenant should be dismissed as the easement has not been extinguished and 218 Tenant is a third-party beneficiary to the easement agreement.

The legal template:

“[E]xpress easements are defined by the intent, or object, of the parties”…If an “easement’s language is not ambiguous, . . . it alone may be considered in determining the true intent of the parties to the grant, to the exclusion of the circumstances surrounding the conveyance and the situation of the parties”…”[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms”…”[T]he interpretation of an unambiguous contract is a question of law for the court, and the provisions of the contract delineating the rights of the parties prevail over the allegations set forth in the complaint”…”[C]ourts should be extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include”…Thus, “courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing”[.]

The pertinent language from the easement agreement is as follows:

The [easement] . . . shall be used and maintained . . . by the Tenant Parties for a term expiring on the earlier of the date Tenant, its successors and assigns, vacate [216 parcel] and [218 parcel] or May 31, 2031[.]

The word “and” in “vacate [216 parcel] and [218 parcel] or May 31, 2031” demonstrates that the termination clause is only triggered upon 218 Tenant vacating both the 216 parcel and the 218 parcel. 218 Tenant has not vacated the 218 parcel, thus, the easement is still in effect. If J&G and Schwartz intended that the easement extinguish upon 218 Tenant vacating at least one of the parcels, the easement agreement should have been drafted as such (e.g. “a term expiring on the earlier of the date Tenant, its successors and assigns, vacate [216 parcel]” or “[218 parcel]”) in the same way that the or is used in “or May 31, 2031”[.]

Concluding that:

Plaintiffs’ argument that “[i]t is therefore entirely consistent . . . that the `Term’ of the [e]asement expires when the Tenant vacates both spaces because the [e]asement requires that the `Tenant’ be the occupant of both spaces” is unavailing…If 218 Tenant is required to be the occupant of both spaces, then the easement agreement would state that termination is effective when “Tenant” vacates one property (i.e. [the 216 parcel or the 218 parcel). However, the termination provision explicitly states that the easement terminates when “Tenant”, here 218 Tenant, “vacates [216 parcel] and [218 parcel]” (i.e. not just one property) “or May 31, 2031”[.]

Plaintiffs’ argument that the easement may be used only as long as both the 216 parcel and the 218 parcel solely operate as a restaurant and both leases are in effect is also unavailing as the easement agreement does not contain this limitation. “[A] condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises”…”[T]erms such as `if,’ `unless’ and `until’ constitute ‘unmistakable language of condition’…As for a condition subsequent, it “[is] disfavored and [is] not found to exist unless the intention to create them is clearly expressed”…The easement agreement contains the following language, which is an unconditional grant of the easement:

[Schwartz], [her] successors and assigns do hereby grant, bargain, quitclaim and convey to [J&G Family] and Tenant, their successors and assigns, for the benefit of [218 parcel] and the exclusive use by Tenant, the right to . . . the use and enjoyment of, over, upon, across and through the Access Easement for ingress and egress by . . . the ‘Tenant Parties; [among other rights][.]

Although the easement agreement refers to the existence of the 216 lease and the 218 lease, its validity is not dependent on the continued validity of both leases. The easement agreement merely states that, “[218 LLC] shall be permitted to use the Pass-Through and enter upon the premises of [the 216 parcel] and [the 218 parcel] pursuant to the terms of the Lease Agreement between [J&G] and [218 Tenant] . . . and the lease Agreement between [Schwartz] and [218 Tenant]”…It does not indicate a condition precedent or a condition subsequent regarding the 216 lease or the 218 lease. Moreover, the easement runs with the land, not the 216 lease. The easement agreement states, “[t]he covenants set forth herein shall run with the land and be binding upon and inure to the benefit of the [J&G and Schwartz] and their respective heirs, legal representatives, successors and assigns”…Moreover, the 216 lease states that it is “subject to a Party Wall Agreement to be mutually agreed upon by the parties”[.]

The easement agreement also provides that the “[easement agreement] constitutes the entire understanding between the parties with respect to the properties affected by this [easement agreement] . . .”, and it contains a severability provision, which states that any provisions found “to be illegal or unenforceable . . . shall be excised . . . and the remainder . . . shall continue into full force and effect…Furthermore, even if, assuming arguendo, the easement is ambiguous, “[a]ny ambiguities in an easement are to be construed in the manner most favorable to the grantee and its successors”[.]

As to the third-party beneficiary arguments, 218 Tenant is a third-party beneficiary of the easement agreement. In New York, “an owner of neighboring land, for whose benefit a restrictive covenant is imposed by a grantor, may enforce the covenant as a third-party beneficiary despite the absence of any privity of estate between the grantor and the neighbor.”… The easement agreement states that the easement is “for the exclusive benefit of Tenant”…Therefore, 218 Tenant is a third-party beneficiary.

The Court denied plaintiff’s motion for summary judgment and granted 218, LLC’s cross-motion for summary judgment and granted defendant’s cross-motions for summary judgment and declared that:

[T]he easement on the building located at 216 Lafayette Street, New York, New York and filed on October 18, 2012, with the Office of the City Register is interpreted in favor of J&G Family Limited Partnership as the easement is valid.

Bedik Corp. v. Herrick Rd. Holdings LLC, 2018 NY Slip Op 28402, Sup. Ct. Na. Co. (December 14, 2018)

Supreme Court summarized the prior proceedings and pending motions:

In a decision dated August 30, 2018, following a non-jury trial, this court found that…Bedik Corporation has an easement by prescription over a patch of vacant paved land owned by defendant Herrick Road Holdings LLC…that is adjacent to Bedik’s property. The land has been used for decades by trucks delivering and receiving goods to and from the loading bays of Bedik’s building…Because HRH now desires to secure the area in question with a fence in connection with its intended development of the property, the precise dimensions of the easement must be determined. In this regard, the court heard additional testimony on October 29, 2018.

The witnesses:

Two witnesses testified for Bedik concerning the parameters of the easement: Gary Spinello, an architect hired by Bedik to assist it with this litigation and William Muran, an owner and a manager of operations at the Bedik building. No testimony was offered by HRH.

The testimony of William Muran:

Muran testified that he observed delivery trucks going in and out of the Bedik facility for 38 years and that they always generally followed the same path. Trucks enter the area from Armstrong Road to the north, travel east past the Bedik building and then bear south towards Bedik’s loading bays, located on the east side of the Bedik building. The trucks then bear east, in the direction of HRH’s building across from the loading bays, and utilize the vacant area between the two buildings to maneuver the trucks as they back into the loading bays. The trucks exit the loading bays by turning north and generally retrace their route back to Armstrong Road. Muran further testified that…a diagram drawn by Spinello, fairly reflects the area in question used by trucks to get to and maneuver into and out of Bedik’s loading bays.

The testimony of Spinello:

Spinello testified for the second time. The first time he testified, on April 17 and 18, 2018, he stated that he visited the site on two or three occasions and personally witnessed the paths the trucks took as they crossed over onto HRH’s property. During this initial testimony, Spinello relied upon a drawing he prepared—entered into evidence as Exhibit 9—to demonstrate the path of the trucks over HRH’s property as they accessed Bedik’s loading bays. During his testimony on October 29, Spinello relied upon a new, more recent drawing—Exhibit 12—in support of his testimony establishing the dimensions of the easement. The easement dimensions as depicted Exhibit 12 differ from those in Exhibit 9 in two important respects.

The differing exhibits:

First, the easement area directly across from Bedik’s loading bays is different. In Exhibit 12 the easement juts onto HRH’s property 95 feet lengthwise and 60 feet widthwise at this location. In Exhibit 9, the easement is 85 feet in length. Spinello testified that he never saw a truck extend onto HRH’s property the additional 10 feet reflected in Exhibit 12, but he believes the increased distance would make it easier for the trucks to maneuver. Exhibit 12 also differs at this location from a diagram drawn by Spinello dated October 27, 2016, Exhibit D in evidence, upon which Bedik relied in its bill of particulars. In Exhibit D, Spinello depicted the claimed easement as 78 feet in length at this location, after observing a truck make the required maneuvers to and from the loading bays.

The second manner in which Exhibit 12 differs from Exhibit 9 is that the claimed easement area north of the loading bays (the point of ingress and egress to and from HRH’s property) is reduced. But the arc depicted by Spinello for this area on Exhibit 12 is still larger than that which is depicted in another diagram drawn by Spinello three weeks earlier—Exhibit I. And Spinello testified that he observed a truck that was able to access the Bedik loading bays within the easement boundaries reflected in Exhibit I.

Concluding that:

[T]his court finds that the dimensions of the easement are as reflected in Exhibit I, modified to reduce the eastern most boundary to 78 feet as reflected in Exhibit D.

Reviewing cases from other jurisdictions stating various tests explicating that:

This court has found that for decades trucks seeking to access Bedik’s loading bays have traversed an identified portion of HRH’s property to do so. HRH has argued that no easement by prescription can be declared because Bedik cannot identify a sole path utilized by the trucks over its property. HRH’s argument is buttressed by the differing diagrams drawn by Spinello.

But HRH ignores that Bedik has established by clear and convincing evidence that trucks have utilized a substantially identical path over HRH’s unmarked pavement for an identical purpose: to back into and out of Bedik’s loading bays. It should come as no surprise that different truck drivers of varying skills attempting to back a 75-foot rig into a narrow loading bay over unmarked pavement would not follow a single, specific line of travel. The inconsequential variations of the drivers’ paths, as reflected in the Spinello drawings, do not alter the conclusion that the adverse use of HRH’s property was identifiable, so that HRH was placed on fair notice of Bedik’s hostile use.

The concept of fair notice to a property owner of another’s adverse use underlies the requirement that an easement by prescription have determinate boundaries. To satisfy the open and notorious element of a prescriptive easement claim, a party’s use of another’s land should be substantial and reasonably definite…”Claims for rights of way must be based on uses that are substantially confined to a regular route.”…Equity also dictates that the acquisition of a right to utilize another’s land be limited at least to the actual past use made of such land.

There are few cases in New York discussing the scope of a prescriptive easement and none similar to the facts before the court[.]

Irrespective of whether New York were to adopt the “pattern of use,” “substantial identity,” or “definite line of travel” test, Bedik has set forth sufficient evidence to establish its right to the claimed easement. It produced an eyewitness attesting to the consistent pattern of travel utilized by the delivery trucks with only slight deviations and evidence delineating this pattern was introduced.

For sure, Bedik does not help its cause by submitting diagrams with varying descriptions of its claimed easement. But the discrepancies—while significant to HRH because every foot of property burdened could affect its desire to proceed with submitted and approved development plans—are not substantial given the overall size of the vacant lot in question. Furthermore, some discrepancies were explained by Spinello as emanating from his inclusion in certain diagrams of additional space to provide a cushion for less-skilled drivers and for convenience. This court will not include such additional space as part of the prescriptive easement. While some variation of the trucks’ actual use of the vacant lot is explainable and acceptable, the touchstone remains that the easement is limited to actual use.

Furthermore, given the varying paths used by the trucks, equity dictates in these circumstances that the right-of-way be limited to the area necessary for the purpose of the easement…Spinello testified that he observed trucks successfully accessing and leaving the loading bays utilizing the easement area reflected in Exhibit I. Trucks were also able to successfully navigate the area utilizing an eastern boundary of 78 feet as reflected in Exhibit D. These are the least intrusive uses of HRH’s land and, therefore, are the appropriate dimensions of the easement[.]

Sacasa v. Trust, 2018 NY Slip Op 51383(U), Sup. Ct. Suff. Co. (September 18, 2018)

Supreme Court, in entertaining cross-motions for summary judgment, summarized the facts:

Plaintiffs are the owners of residential properties abutting a private road in the Village of East Hampton known as Windmill Lane, which runs perpendicular to Further Lane from its southern boundary and terminates near the Atlantic Ocean. They commenced this action, pursuant to article 15 of the Real Property Actions and Proceedings Law, for a judgment declaring that each of their properties is benefitted by a five-foot-wide foot pedestrian easement that passes over the property known as 33 Windmill Lane and provides access to the beach and the Atlantic Ocean. More particularly…plaintiffs seek determinations that each of their respective properties on Windmill Lane are “benefitted by a prescriptive easement for access by foot from the end of Windmill Lane to the Atlantic Ocean beach along the westerly lines” of the properties known as 27 Windmill Lane and 33 Windmill Lane…[P]laintiffs [also] seek a determination that the properties known as 3 Windmill Lane, 7 Windmill Lane, and 11 Windmill Lane each have an express easement to access the subject pedestrian path…[P]laintiffs [also] seek a judgment determining that their properties are benefitted by an easement over the easterly 25 feet of Windmill Lane running across the property known as 27 Windmill Lane. The David Andrew Trust Revocable Trust holds title to the property known as 27 Windmill Lane…and additional defendants Alfred Shuman and Stephanie Shuman hold title to the property known as 33 Windmill Lane…both of which are located on the east side of Windmill Lane…[D]avid Trust is the trustee of the David Andrew Trust Revocable Trust, which look title to 27 Windmill Lane in 1999. In addition…[P]laintiffs [also] seek permanent injunctions prohibiting Trust from interfering with their use of Windmill Lane and directing the removal of the obstructions in the subject easements erected on the DAT Trust property.

Furthermore, the Shuman defendants interposed a cross claim against Trust for an injunction directing him to remove all structures that he erected within the Windmill Lane easement and prohibiting him from interfering with their property rights of ingress and egress. They also brought a cross claim seeking a declaration that Trust has no right to use the 5-foot-wide pedestrian easement that crosses over their property and leads to the beach. Trust served an answer to the cross claims denying nearly all of the Shuman defendants’ allegations.

The subsequent proceedings:

Trust, individually and as trustee of the David Andrew Trust Revocable Trust, then commenced a third-party action for declaratory and injunctive relief against the owners of the properties known as 26 Windmill Lane and 32 Windmill Lane. Situated directly across the street from the DAT Trust property, on the western side of Windmill Lane, the property known as 26 Windmill Lane currently is owned by…Evans Investment LLC. Abutting 26 Windmill Lane on its southern boundary, the property known as 32 Windmill Lane is owned by…the James H. Evans 2001 Revocable Trust and the James H. Evans 2011 Family Trust own 32 Windmill Lane. The amended third-party complaint alleges, in relevant part, that Windmill Lane is situated within a 50-foot-wide easement for ingress and egress running from the southern boundary of Further Lane to the properties known as 27 Windmill Lane and 32 Windmill Lane: that a strip of property, which measures 25 feet wide and 154 feet long, running along the eastern boundary of the property known as 26 Windmill Lane, and an abutting strip of property, which measures 25 feet wide and 32.69 feet long, running along the boundary of 32 Windmill Lane, are burdened by such easement; and that third-party defendants have prevented the use of the easement insofar as it crosses their properties, both for providing access to the southernmost parcels of land and for providing pedestrian access to the beach and Atlantic Ocean, by installing boulders, grass and other landscaping features within the westerly 25-foot-wide portion of the easement area.

The pleadings:

The first cause of action of the third-party complaint seeks a declaration that Trust and the David Andrew Trust Revocable Trust have rights “to and over the 25 feet of Windmill Lane for a length of 186.69 feet on the third-party defendants’ properties and determining that Windmill Lane should burden not only the third-party plaintiffs’ property but the third-party defendants’ properties equally and that the share the burden of said roadway in accordance with the deeds in their respective chains of title.” The second cause of action seeks a permanent injunction enjoining third-party defendants from “obstructing use and paving of the westerly 25 feet of Windmill Lane as it traverses their properties.” A third cause of action states only that third-party defendants are necessary parties to the underlying action. Third-party defendants interposed a counterclaim for a judgment directing the Trust defendants to remove structures erected in the Windmill Lane easement area and enjoining them from interfering with their use of Windmill Lane.

The pending motion:

Trust now moves for summary judgment dismissing the complaint and the cross claims against him, arguing that plaintiffs do not have deeded rights to use the pedestrian easement; that plaintiffs’ past use of such easement was merely a neighborly accommodation and did not create a prescriptive easement; and that the obstructions erected within the easement areas prior to the commencement of this action have been removed. In addition, Trust argues the action should be dismissed on the ground that plaintiffs have failed to name necessary parties to this action, namely, R.E. Dowling Realty Corporation, Paul Sheerer, Barbara Sheerer, and Joel Stern[.] Included in Trust’s submissions in support of the motion are the transcripts of plaintiffs’ deposition testimony, the transcript of the deposition testimony of Alfred Shuman, copies of various deeds and surveys, an unsworn title report prepared by Fidelity National Title, and an affidavit of Alexandra Bossung, a title examiner. The court notes the title report prepared by Fidelity National Title was not in admissible form and was not considered in the determination of the motion[.]

Sacasa’s contentions:

Plaintiffs oppose Trust’s motion and cross-move for an order granting summary judgment in their favor on the complaint. Plaintiffs assert, among other things, that affidavits and deposition transcripts submitted in support of their motion establish a prima facie case that each has acquired a prescriptive easement over the 5-foot-wide right of way that runs from the southern portion of the DAT Trust property and across the Shuman property which benefits their respective property. They argue that a 1949 deed issued by Russell Hopkinson to R.E. Dowling Realty Corporation created a 50-foot-wide easement…for ingress and egress, which terminates by the properties known as 27 Windmill Lane and 32 Windmill Lane and benefits all of the properties abutting such easement. They further argue that Trust, by putting stones on the roadway “to pretend that it stops at his property” and by installing a gate at the boundary with the Shuman property, obstructed both their deeded rights to access the southernmost portion of the Windmill Lane easement and their prescriptive rights to use the pedestrian right of way[.]

Shumans’ contentions:

The Shumans also oppose Trust’s motion and submit, among other things, copies of the deeds to their property and the DAT Trust property, and an affidavit of Alfred Shuman, dated June 22, 2017. Alfred Shuman states in his affidavit that sometime in 2010. David Trust “began objecting to our neighbors’ use of our easement on Windmill Lane and the eleven foot wide private roadway to access the beach path which is located on our property . . . he caused certain structures to be erected within the boundaries of Windmill Lane and the private roadway . . . including a gate and two (2) stone walls or gabions.” He further alleges that the gate and one stone wall later were removed by Trust, and that the remaining stone wall makes access to 33 Windmill Lane “more difficult.”

The Maglioccos’ contentions:

Conversely, Allison Magliocco and Joseph Magliocco oppose plaintiffs’ motion and support Trust’s motion, arguing, in part, that as the deeds conveying title to their property, known as 19 Windmill Lane, and to the properties known as 15 Windmill Lane and 23 Windmill Lane contain language conveying a right of way over a 5-foot-wide strip of land running along the western border of the DAT Trust property and the Shuman property, and such language is not contained in plaintiffs’ deeds, it is “likely” that the predecessor in title only intended that the owners of such properties have a right to use the footpath to access the beach. The Maglioccos further argue a determination that plaintiffs have easements by prescription “will result in a windfall to plaintiffs and rob [them] of their valuable deeded beach access rights by essentially effectuating a private taking” without compensating them for the loss of such rights[.]

Third-party motions:

Additionally, third-party defendants cross-move for summary judgment dismissing the third-party complaint. They also seek a judgment declaring that Trust has no rights in the unpaved portion of the Windmill Lane easement that crosses their properties, canceling the notices of pendency tiled against their properties, and awarding them costs and expenses under CPLR 6514 (c). Third-party defendants allege Trust has installed a gabion tiled with stones, a fence, and gate, as well as re-surfaced a portion of Windmill Lane in front of the DAT Trust property with red gravel and installed a metal edging in the roadway, presumably to mark the western boundary of such property within the Windmill Lane easement. They assert that the wall, the fence, the gate, and the metal edging interfere with their right to use the Windmill Lane easement for ingress and egress, as well as create a safety hazard for drivers exiting their respective properties. They further allege that the grass, landscaping features, and portions of the driveways for 26 Windmill Lane and 32 Windmill Lane located within the western portion of the Windmill Lane easement, which Trust alleges prevent his use of the entire 50-foot width of the Windmill Lane, have been present since 1986, and that the only demand they received to remove such features was made by David Trust in 2013.

And the third-party’s contentions:

Third-party defendants argue, in part, that the third-party complaint should he dismissed, as Trust admits the paved portion of Windmill Lane is sufficient to allow ingress to and egress from the DAT Trust property, and there is no basis for the Trust’s claim that the burden of the improved portion of the Windmill Lane easement should be borne equally by the DAT Trust property and third-party defendants’ properties[.]

The documentary evidence:

[T]he evidence in the record shows the Windmill Lane easement was created by a common grantor. Russell Hopkinson, by way of a deed given to R.E. Dowling Realty Corporation in November 1949. The 1949 Hopkinson deed to R.E. Dowling Realty transferred the eastern half of a 20-acre parcel of property owned by Hopkinson running south from Further Lane to the beach at the Atlantic Ocean, which he had acquired by deeds from John W.Y. Martin and Samuel Klump Martin III, both dated February 1944. The 1949 Hopkinson deed describes the property as comprising an area of 12.27 acres, with the northwest corner marked by the intersection of the southern side of Further Lane and the center line of a private road measuring 50-feet wide. The 1949 deed conveys “a perpetual right-of-way over the westerly twenty-five (25) feet of the fifty (50) foot private road hereinbefore referred to, for ingress to and egress from said premises from and to Further Lane,” as well as reserved to Hopkinson “a permanent right-of-way over the easterly twenty-five (25) feet of said fifty (50) foot private road for ingress to and egress from other premises of [Hopkinson] on the west, from and to Further Lane.” Moreover, the 1949 deed states the private road “shall be and remain a common driveway for the benefit of the owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of [Hopkinson] on the west, or any part thereof,” and that the transfer of title includes all of Hopkinson’s “right, title and interest, if any, in and to any land adjacent to the above described premises to the south thereof, to the mean high water line of the Atlantic Ocean.”

The documentary evidence further shows that 12 parcels of residential property abut the Windmill Lane easement, and that 14 parcels presently use the easement for ingress and egress. The property owned by plaintiffs Orlando Sacasa and Jane Sacasa, known as 3 Windmill Lane, the property owned by plaintiffs Evan Sheinberg and Abigail McKenna, known as 7 Windmill Lane, the property owned by plaintiffs Jack Nusbaum and Nora Wallace, known as 11 Windmill Lane, and the property owned by Lalitte Smith and the Smith Family Qualified Personal Residence Trust #1, known as 15 Windmill Lane…are situated on the eastern side of Windmill Lane, north of the DAT Trust property. The property owned by plaintiff Jean Clarke, known as 12 Windmill Lane, is located on the west side of Windmill Lane, north of third-party defendants’ properties, as is the property owned by the Joline Stemerman 2012 Gift Trust and the David Stemerman 2012 Family Trust…known as 16 Windmill Lane. The DAT Trust property is bounded on the north by the property known as 19 Windmill Lane, owned by additional defendants Allison Magliocco and Joseph Magliocco, on the east by the property known as 23 Windmill Lane, owned by the Calista Washburn Revocable Trust dated May 7, 2009 and the Ira H. Washburn, Jr. Revocable Trust dated May 7, 2009…and on the south by the Shuman property. Fronting the Atlantic Ocean, the Shuman property is just south of the Windmill Lane easement. The western portion of its northern boundary abuts the DAT Trust property, and the eastern portion abuts the Washburn Trust property. The Shuman property and the Washburn Trust property, a flag lot situated east of the DAT Trust property, can only be accessed using the Windmill Lane easement.

Significantly, only a portion of the Windmill Lane easement is paved. Certified surveys included with the motion papers show that the paved portion of the roadway shifts east as it approaches the southern end of Windmill Lane, and that the entire paved portion at the end of the road is within the easternmost section of the Windmill Lane easem1ent area. Neither the Shumans, who have owned their property since 2001, nor Trust dispute plaintiffs’ allegation that the beach access path at issue measures five feet in width.

The evidence in the record shows that the R.E. Dowling Corporation transferred the parcels of land known as 15 Windmill Lane and 19 Windmill Lane, both on the eastern side of the road, to Robert W. Dowling in 1966. In addition to language referring to the right to use the Windmill Lane easement for ingress to and egress from Further Lane, the 1966 deeds transferring ownership to Robert Dowling state title to such properties includes a 5-foot-wide right of way “for ingress to and egress from the southerly 50-foot end of Windmill Lane and the Atlantic Ocean beach by foot only, including the use of the most westerly stairway, all running along the most westerly boundary” of the land owned at the time by Carolyn Storrs Spofford, i.e., the 27 Windmill Lane and the 33 Windmill Lane properties. The 1966 deeds to Robert W. Dowling also state “an identical easement exists in favor of Calista Washburn.” The easement in favor of the property owned at that time by Calista Washburn was created by a 1961 deed from R.E. Dowling Corporation to Calista Washburn, which states that included in the transfer of ownership is a “perpetual right of way, for use in common with others, over the full course of the 50 foot private road known as Windmill Lane, for ingress and egress to and from said premises and Further Lane,” as well as a “perpetual right of way for ingress to and egress from the southerly 50 foot end of Windmill Lane and the Atlantic Ocean beach, on foot only, over and along strip 5 feet in width, including the use of the most westerly stairway, all running along the western boundary of other premises of the grantor herein from said southerly end of Windmill Lane.” It appears that the property transferred to Calista Washburn in 1961 is the property herein referred to as the Washburn Trust property.

The legal template:

As to the claims under article 15 of the Real Property Proceedings and Action Law, “[a]n easement is not a personal right of a landowner but an appurtenance to the land benefitted by it (the dominant estate). It is inseparable from the land and a grant of the land carries with it the grant of the easement”…It is not just a personal privilege to use another’s land, but an actual interest in the land…”An easement is a permanent right conferred by grant or prescription, authorizing one landowner to do or maintain something on the adjoining land of another, which, although a benefit to the land of the former, and a burden upon the land of the latter, is not inconsistent with general ownership”…Thus, a grantee of land takes title subject to any duly recorded easements that were granted by his or her predecessors in title…as well as to any unrecorded easements of which he or she has actual or constructive notice…A person who purchases a servient estate with actual or constructive notice of an easement is estopped from denying the existence of such easement…and may not unreasonably interfere with the rights of the owner of the dominant estate to use and enjoy the easement…Further, “long-time use, without objection of the servient tenement, establishes the location of the easement”[.]

As an easement derives from use, its owner gains merely the limited use or enjoyment of the servient land…An easement appurtenant occurs when the easement is conveyed in a writing, subscribed by the creator of the easement, which burdens the servient estate for the benefit of the dominant estate…When the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses, even if there is no specific mention of it in the deed…Once created, an easement appurtenant by grant passes with the land unless extinguished by abandonment, conveyance, condemnation or adverse possession…It is not extinguished by subdivision of the land to which it applies so long as no additional burden is imposed upon the servient estate[.]

An easement by prescription is acquired by the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period of ten years…”The right acquired by prescription is commensurate with the right enjoyed. The extent of the enjoyment measures the extent of the right”…As with adverse possession, a party claiming an easement by prescription bears the burden of proving the existence of such an easement through clear and convincing evidence…Generally, clear and convincing evidence of an open, notorious, continuous, and uninterrupted use of an easement creates a presumption that the use was hostile, and shifts the burden to the owner of the servient estate to demonstrate that the use was permissive…Further, a party seeking a right of use by prescription need not establish that such use was exclusive…and may tack the use of the easement by his or her predecessors in title to establish the requisite prescriptive period[.]

Moreover, where the intention of the grantor is to afford only a right of way. “it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder”…Thus, an owner of land that is burdened by an easement of ingress and egress “may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired”[.]

Concluding that:

Plaintiffs Sacasa, Clarke, Sheinberg, and McKenna established a prima facie case that they each have a prescriptive easement over the 5-foot-wide path beginning on the southwest portion of the property known as 27 Windmill Lane, which runs along the western boundary of such property and the property known as 33 Windmill Lane, with clear and convincing proof of their adverse, open, notorious and continuous use of such properties for 10 years or more to access, by foot, the Atlantic Ocean beach from Windmill Lane…More specifically, the affidavit of Jane Sacasa, who, with her husband. Orlando Sacasa, acquired title to 3 Windmill Lane in 1991, states that she lived at such property as a part-time resident from 1991 through 2016, and that she and her brothers owned the property known as 7 Windmill Lane from 2001 to 2009, when it was sold to Evan Sheinburg and Abigail McKenna. She avers, in part, that she currently lives full time at the property known as 3 Windmill Lane, and lived “several weeks a year” with her mother in the residence at 7 Windmill Lane “beginning in 1973,” and that “[f]or as long as I have lived on Windmill Lane. I continuously and openly have used the five-foot-wide path at the southern terminus of Windmill Lane to reach the Atlantic Ocean beach,” walking on the foot path that leads across the DAT Trust property and the Shuman property, to a wooden staircase on the Shuman property that leads to the beach. She further alleges that since 1991, she and her husband have contributed to the cost of maintaining Windmill Lane “all the way to the beginning of the beach path,” that she has “contributed to keeping the staircase free of weeds,” as did her mother, Suzanne McFarlane, and that at no time did she request permission of the owners of the property known as 33 Windmill Lane to “walk over their property to clip weeds growing under the risers of the staircase.” Both Jane and Orlando Sacasa testified at pretrial depositions that they have used the path to gain access to the Atlantic Beach for more than 50 years: that they continued to regularly use such path during the summer months after they purchased their property; that Trust observed them crossing over his property and never objected to such use; and that they regularly observed the other plaintiffs use the beach path over the years. They also testified that they contributed to the cost for resurfacing Windmill Lane, which originally was comprised of oil and sand, and then, approximately 12 years ago, was paved with asphalt.

The evidence also shows that Clarke, who lived on Windmill Lane with her parents since her childhood and has owned the property known as 12 Windmill Lane since 1979, used the path during the summer months openly, visibly, continuously and undisputed for decades. Clarke testified that she contributed to the cost of maintaining the private road, and that she never spoke with either the Shumans or Trust.

Moreover, the affidavits submitted in support of plaintiffs’ motion demonstrate that Sheinberg and McKenna, who acquired 7 Windmill Lane in 2009, and their predecessors in interest, namely Suzanne McFarlane, John Shanholt, and Peter Shanholt, openly, continuously and notoriously used the path during the summer season for more than 10 years…The affidavits of McFarlane, John Shanholt, and Peter Shanholt state, in part, that no one gave them permission to use the pedestrian easement, that they believed they had a right to do so by virtue of their ownership of property on Windmill Lane, and that they intended to convey such easement when they transferred their interests in 3 Windmill Lane and 7 Windmill Lane. In addition, the Sacasas, Sheinberg, McKenna, and Clarke testified that they did not have a friendly relationship with either David Trust or the Shumans, or with the previous owners of the DAT Trust property or the Shuman property. The Sacasas, Sheinberg, and McKenna further testified that they first discussed the issue of the pedestrian right of way with the Shumans sometime in 2010, after Trust, seeking to obstruct access, erected a gate at the boundary with the Shuman property. The court notes the deposition testimony shows the gate erected by Trust in 2010 did not actually lock and did not, in fact, block access to the path leading to the beach.

Wallace and Nusbaum, however, failed to establish a prima facie case entitling them to summary judgment on their cause of action for a prescriptive easement…Wallace testified in 2016 that she regularly walks along the ocean beach in the summer months, that she walks down Windmill Lane and the path at issue to gain access to the beach, and that she has done so since she and Nusbaum purchased 11 Windmill Lane in 2002. Both Wallace and Nusbaum testified that they have never requested permission to use the path, and that neither Trust nor the Shumans have told them not to walk on their property. Nusbaum, who testified that he paid to repave Windmill Lane after the renovation of his residence, avers in an affidavit that he has contributed to the maintenance costs for the road since he purchased his property. Yet affidavits of Wallace and Nusbaum also aver that they received a letter in May 2010 from the Shumans advising that, despite a “Private Property No Entry” sign posted by Trust, the residents on Windmill Lane were welcome to use the beach path. The claimed receipt of such letter, allegedly addressed to all residents of Windmill Lane, raises a question as to whether Wallace’s and Nusbaum’s use within the 10-year prescriptive period was hostile or permissive. Neither the affidavit of Barbara Blumberg, a real estate agent who states merely that it was her “understanding” that the sellers of 11 Windmill Lane used the path to access the beach, nor the affidavits of Anthony Parkinson, who owned such property from 1985 to 1989, and his wife at the time, Joan Eldridge, are sufficient to meet Nusbaum and Wallace’s initial burden of showing a continuous and uninterrupted use by them and their predecessors in interest for the required 10-year period[.]

As to 16 Windmill Lane, Joline Stemerman testified that 16 Windmill Lane LLC, a limited liability company of which she was a member, acquired the property in 2010, that the residence was uninhabitable the following year due to renovations, and that the property currently is owned by a trust. She testified that she and her children regularly use the path to walk to the beach during the summer months. Having owned the property for less than 10 years, Joline Stemerman and David Stemerman, the trustees of the Stemerman trusts, rely on an affidavit of Peter Schaeffer to establish their prescriptive easement claim. Such affidavit, however, is insufficient to make out a prima facie case, as there is no indication Schaeffer’s allegations regarding his various relatives’ use of the path to access the beach are based on direct, personal knowledge…Thus, absent admissible evidence that the prescriptive rights of the predecessors in title of 16 Windmill Lane had matured prior to the time Trust disputed the use of his property to access the beach, or even that their predecessors in title openly, notoriously and continuously used the pedestrian right of way, Joline Stemerman and David Stemerman failed to make prima facie case of entitlement to summary judgment in their favor on their prescriptive easement claims[.]

As to those plaintiffs who established a prime facie case that prescriptive easements exist for use of the path from the southern end of Windmill Lane to the Atlantic Ocean beach, the burden shifted to Trust to raise a triable issue as to whether the use of such right of way by plaintiffs and their predecessors in interest was permissive…Trust’s assertion that plaintiffs are not entitled to the presumption of hostility, because deposition testimony and the statements in their affidavits and the affidavits of their nonparty witnesses that they never were prevented from using the beach access path demonstrate their use was not hostile, but permitted as a neighborly accommodation, is rejected…Absent from Trust’s submissions in opposition to plaintiffs’ motion is evidence that Trust, the Shumans or their predecessors in title attempted to stop the use by such plaintiffs or plaintiffs’ predecessors in title before their respective prescriptive easements matured…”A matured easement appurtenant . . . passes with the transfer of the dominant estate so long as there is privity of estate and undoubted intent . . . to convey the easement”…Contrary to the assertion by Trust’s attorney, evidence that people who rented plaintiffs’ properties would also use the path to access the beach does not constitute proof that the right of way was used by the general public[.]

Accordingly, summary judgment in favor of plaintiffs is granted as to the first, second, and fourth causes of action, but denied as to the third and fifth causes of action. As issues of fact exist as to whether Wallace and Nusbaum have a matured prescriptive easement and whether the predecessors in title of 16 Windmill Lane had matured prescriptive easement rights, the applications by Trust for summary judgment in his favor as to the third and fifth causes of action are denied. Summary judgment dismissing the sixth cause of action, however, is granted, as plaintiffs do not dispute the evidence submitted with Trust’s moving papers demonstrating that an express easement permitting the use of the pedestrian path to access the beach is not included in their respective deeds.

As to the cause of action for a declaration that plaintiffs’ properties are benefitted by an easement over the easterly 25-feet of the Windmill Lane easement that runs across the DAT Trust property, there is no dispute that the 1949 deed to R.E. Dowling Realty Corporation transferred Hopksinon’s interest to the parcel of property located on the eastern side of Windmill Lane running from Further Lane to the “mean high water line” of the Atlantic Ocean beach. As discussed earlier, the 1949 deed, properly recorded with the County Clerk, refers to a 50-foot wide private road and states that the transfer of title includes “a perpetual right-of-way over the westerly twenty-five (25) feet of the fifty (50) foot private road” discussed in the metes and bound description of the property. The deed reserves for Hopkinson a “permanent right-of-way over the easterly twenty-five (25) feet [of the private road] for ingress to and egress from other premises” owned on the western side of the road “from and to Further Lane.” and unambiguously states that such private road “shall be and remain a common driveway for the benefit of the owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of [Hopkinson] on the west.” It further states that the cost for maintaining the private road shall be divided between Hopkinson, “his grantees, heirs or assigns,” and R.E. Dowling Realty Corporation, “its grantees, successors or assigns.”

Express easements are governed by the intent of the parties…”In determining the extent of an easement claimed under an express grant or reservation, the ordinary rules of construction and interpretation apply, which are essentially those applicable to other written instruments, and to deeds generally”…The primary rule of construction of deeds involving the grant or reservation of an easement is that “the real intention of the parties is to be sought and carried out whenever possible, at least when not contrary to settled principles of law or statutory prohibitions”…[“Every instrument creating, transferring, assigning or surrendering an estate in property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument”]). The intention of the grantor “is to be determined in light of all the circumstances; however, one of the most important indications of a grantor’s intent is the language in the original deeds”[.]

Plaintiffs’ submissions established a prima facie case that their properties are benefitted by an easement appurtenant across the portion of the DAT Trust property within the Windmill Lane easement…[I]t is clear from the language used in the 1949 deed that Hopkinson anticipated the future development of the land along Windmill Lane, and that his purpose in establishing a perpetual 50-foot wide easement was to ensure that subsequent property owners could access Further Lane. Significantly, absent from the 1949 deed is any language restricting a subsequent property owner’s use of the private road to access only his or her respective parcel of land…Rather, the deed describes the private road as a common driveway for the benefit of the “owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of [Hopkinson] on the west.” Having been created by the 1939 Hopkinson deed, the Windmill Lane easement appurtenant passed to subsequent owners of the dominant estates along Windmill Lane, and no evidence has been submitted by Trust demonstrating that such easement has been extinguished in so far as it passes over the DAT Trust property…Summary judgment in plaintiffs’ favor on the seventh cause of action, therefore, is granted. Further, as the documentary evidence establishes the DAT Trust property is benefitted by an express easement over the pedestrian path to the Atlantic Ocean beach, and no issue of fact regarding such easement has been raised, Trust’s application for summary judgment dismissing the Shumans’ cross claim for declaratory relief also is granted.

Denied injunctive relief:

As to the application for summary judgment in favor of plaintiffs on their causes of action for injunctive relief, a permanent injunction is an extraordinary remedy that will not be granted absent a clear showing by the party seeking such relief that irreparable injury is threatened and that no other adequate remedy at law exists…Here, it is undisputed that subsequent to the filing of this action, David Trust removed the gate and the gabion erected in the pedestrian easement area, and no evidence has been submitted by plaintiffs showing Trust is interfering with their access to either the Windmill Lane easement or the pedestrian easement. Accordingly, summary judgment in favor of plaintiffs as to the eighth and ninth causes of action is denied, and the applications by David Trust for summary judgment dismissing such causes of action and the cross claim for injunctive relief interposed by Alfred Shuman and Stephanie Shuman are granted.

And denied the motion to cancel the notice of pendency:

Finally, the branches of third-party defendants’ motion seeking cancellation of the notices of pendency filed by Trust against 26 Windmill Lane and 32 Windmill Lane and an award for costs and expenses are denied. [The CPLR] provides that the court “upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel the notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith. “The statute further permits a court to award costs and expenses as part of an order cancelling a notice of pendency…Here, the application for a discretionary cancellation of the notices of pendency filed against third-party defendants’ properties improperly was brought on by notice of motion, rather than by order to show cause…Moreover, third-party defendants’ conclusory allegation that the third-party action was not brought in good faith, but to “use the Evans parties’ property rights as leverage in the Sacasa action” is insufficient to meet their burden on such application…The motion by third-party defendants, therefore, is denied.