Opinion
05-5500.
Decided May 22, 2008.
DONOHUE, McGAHAN, CATALANO BELITSIS, Attorneys for Plaintiff, Jericho, New York.
JOSEPH A. MILLER, III, Attorney for Defendant, West Sayville, New York.
ORDERED that the motion by the plaintiff for summary judgment and the motion by the plaintiff for an extension of the notice of pendency are consolidated; and it is further
ORDERED that the motion by the plaintiff for an order pursuant to CPLR 3212 granting summary judgment in its favor on the complaint is denied; and it is further
ORDERED that the motion by the plaintiff for an order pursuant to CPLR 6513 extending the original notice of pendency filed on March 7, 2005 in this action is denied.
This is an action pursuant to Real Property Actions and Proceedings Law article 15 for a judgment declaring that the plaintiff owner of real property located at 85 South Main Street (Middle Road), Sayville, New York, with a landlocked backyard, has an implied easement or an easement by necessity over the adjacent property to the east located at 89 South Main Street, Sayville, New York so as to access the backyard for construction and maintenance. The defendant 3MF, Inc. is the current owner of 89 South Main Street and the prior owner was Ortenzio Cannarili, now deceased.
Both properties abut South Main Street. The 85 South Main Street property has no driveway or roadway access from South Main Street inasmuch as a building that was built around 1926 and is currently in use by the plaintiff occupies the entire southern lot line and fronts on and abuts the sidewalk on South Main Street. The yard behind said building, extending to the northern lot line of 85 South Main Street, contains the cesspools and septic system for said property.
By its amended complaint, the plaintiff alleges that the only means of gaining access, ingress and egress to the backyard of 85 South Main Street for, among other things, vehicular traffic, construction and maintenance is through 89 South Main Street and is necessary for the use and beneficial enjoyment of 85 South Main Street. In its first cause of action, the plaintiff seeks an implied easement also known as an easement by implication and in its second cause of action, the plaintiff seeks an easement by necessity over 89 South Main Street and the driveway and parking area thereon.
The defendants contend in their amended answer that the plaintiff's property is not landlocked inasmuch as the northern side, where the rear yard is located, has a chain link fence with a gate, that has existed for several years. In addition, the defendants point out that there are two fences in excess of eight feet in height running uninterrupted, without any gate, the entire length of their adjoining property line. Based on the above, the defendants assert an affirmative defense that the plaintiff is barred by the doctrines of estoppel and laches from seeking said easements. The defendants add that the plaintiff's predecessor in interest, Kathleen A. Carlsson, Esq., member of the plaintiff, had in excess of four years to request from the prior owner of 89 South Main Street, Ortenzio Cannarili, a written easement or to commence a proceeding for an easement but did not do so until after his death and shortly after his estate entered into a written contract of sale with the defendant 3MF, Inc. on or about February 15, 2005. The defendants contend that the plaintiff's commencement of this action has prevented completion of the sale of 89 South Main Street and assert a counterclaim against the plaintiff for tortious interference with a business contract.
The plaintiff now moves for summary judgment on its complaint and a declaration of an easement by implication or an easement by necessity on and over 89 South Main Street and the driveway and parking area thereon for the benefit of 85 South Main Street and its owners for the purpose of accessing, repairing and maintaining 85 South Main Street.
A party seeking summary judgment must establish his or her position by evidentiary proof in admissible form sufficient to warrant judgment to that party as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562). If the proponent of such motion does not tender evidence which would eliminate material issues of fact, the motion must be denied, regardless of the sufficiency of the opposition (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
As a rule, where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder ( Lewis v Young, 92 NY2d 443, 449). "Implied easements are not favored in the law and the burden of proof rests with the party asserting the existence of the facts necessary to create an easement by implication to prove such entitlement by clear and convincing evidence" (see, Zentner v Fiorentino, 52 AD2d 1036; Root v Conkling, 199 AD 90, 93). "Generally, an implied easement arises upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate" ( Minogue v Monette, 158 AD2d 843, 844; see also, Mobile Motivations, Inc. v Lenches, 26 AD3d 568, 570). In order to establish an easement by implication from pre-existing use upon severance of title, three elements must be present: (1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary to the beneficial enjoyment of the land retained ( Abbott v Herring, 97 AD2d 870, affd 62 NY2d 1028, citing Heyman v Biggs, 223 NY 118, 125).
An easement by necessity is also an implied easement dependent on the unity of ownership followed by a severance thereof ( Minogue v Monette, supra at 844). However, an easement by necessity "rests not on a pre-existing use, but on the need for the way for the beneficial use of the property after conveyance" (id.). The party asserting an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity and subsequent separation of title and that at the time of severance, an easement over the servient estate's property was absolutely necessary ( Simone v Heidelberg, ___ NE2d ___, 9 NY3d 177, 182, 2007 WL 3375545; Stock v Ostrander, 233 AD2d 816, 817). Significantly, the necessity of the easement must exist in fact and not as a mere convenience and must be indispensable to the reasonable use for the adjacent property (see, id.; Heyman v Biggs, 223 NY118, 126). It is to be emphasized that the necessity required for an implied easement based upon pre-existing use is only reasonable necessity, in contrast to the absolute necessity required to establish an implied easement by necessity ( Four S Realty Co. v Dynko, 210 AD2d 622, 623).
By her affirmation, Kathleen A. Carlsson, Esq., (Ms. Carlsson), member of the plaintiff, a limited liability company, states that she and her husband Robert Carlen had obtained title to the property on May 1, 2000 from non-party William Ongania (Mr. Ongania), who had owned the property since December 29, 1980, and that she and her husband had transferred title to the plaintiff on December 22, 2000. She submits copies of deeds in the plaintiff's chain of title to demonstrate that 85 South Main Street and 89 South Main Street were last owned in common in 1935. The Court notes that the deeds transferring ownership of 85 South Main Street to Ms. Carlsson and her husband and transferring ownership to the plaintiff make no mention of any easement. In addition, Ms. Carlsson indicates that when she acquired 85 South Main Street in May 2000, the property had a one-story brick building, resembling a "storefront," that extended along the entire lot line abutting the sidewalk and that she uses the building as her law office. Ms. Carlsson states that behind said building is a rear yard that is blocked off from the street by the building and is fenced in on the other three sides, such that the rear yard is "essentially landlocked."
Ms. Carlsson refers to attached copies of maps from the Sayville Historical Society, that had been prepared by the Sanborn Company for fire insurance companies, to support her position that access to the rear yard, which once contained a garage or shed, for services and repairs that required any equipment or materials of any size or needing trucks could only have been obtained from the adjoining property at 89 South Main Street. Ms. Carlsson describes 89 South Main Street as having an auto body shop which is situated at the far rear of the lot with the front of the lot open to South Main Street. She notes that the rear yard of 85 South Main Street is separated from the property to the north by a chain link fence with a small gate but that the gate has always been locked and that no key to the lock has ever been provided to her. Ms. Carlsson adds that in any event, trucks needed to service 85 South Main Street "would not be able to get up to that fence and gate, much less through it, or to the building."
Ms. Carlsson explains that since her occupancy of 85 South Main Street, she had a new roof installed on the building in the summer of 2004 and that access for that purpose was obtained over 89 South Main Street and that she had trees pruned and removed, again by gaining access from the adjoining property. According to Ms. Carlsson, panels of the stockade fence that separate the two properties have been removed to permit equipment access and have then been reinstalled. Ms. Carlsson states that for a period of time in 2005 access over 89 South Main Street could not be gained because a fence across said property was locked such that utility repairs could not be made to 85 South Main Street and its building could not be used.
Ms. Carlsson further states that the former owner of 89 South Main Street, Ortenzio Cannarili, passed away suddenly on or about January 17, 2005 and that when thereafter she heard from a real estate broker that the administrator of Mr. Cannarili's estate was selling the property, the plaintiff's attorneys commenced this action. She notes that the current owner of 89 South Main Street, the defendant 3MF, Inc., acquired the property with full knowledge of the plaintiff's claim.
By affidavit, the prior owner of 85 South Main Street, Mr. Ongania, states that when he first purchased the property in December 1980 the only access to the backyard was through 89 South Main Street and that during his ownership of 85 South Main Street, he installed a back door to the building. Mr. Ongania notes that during his entire time of ownership of 85 South Main Street, "Arty" Cannarili ran an automobile collision shop next door at 89 South Main Street. In addition, he states that when a fence between the properties rotted away, Mr. Ongania had new fencing installed to contain the spread of auto parts from 89 South Main Street onto his property. Mr. Ongania also states that between 1980 and 2000 he went on and through 89 South Main Street on various occasions when he needed access to his backyard. He provides the following instances: during the 1980's twice he performed roof and skylight work on the building and accessed the roof by a ladder placed on 89 South Main Street; during the 1980's he had access through 89 South Main Street to have the cesspool pumped and roots removed from the cesspool lines on his property, to have new siding installed on the east and north sides of the building on 85 South Main Street, and to do landscape work; and almost every winter he placed a ladder on 89 South Main Street to go up to the roof and remove debris and shovel snow.
In opposition to the motion for summary judgment, the defendants submit the affidavit of Michael Foschi (Mr. Foschi), the sole shareholder and principal of the defendant 3MF, Inc., a corporation formed for the purpose of acquiring 89 South Main Street. Mr. Foschi states that there are no written easements concerning the two subject parcels of property, that Ms. Carlsson had full knowledge of such when she purchased 85 South Main Street, and that he purchased 89 South Main Street despite the lis pendens and rumors of an easement on the property. In addition, he states that he had known Ortenzio Cannarili for over 25 years and during said period of time the two stockade fences back-to-back on the lot line of 85 South Main Street and 89 South Main Street never had panels that separated or were removable. Mr. Foschi questions Ms. Carlsson's conclusion based on the maps and photographs she submitted that access to the rear yard could only have been obtained over 89 South Main Street when there is an alternate possibility, access from the north, from Montauk Highway, on the side of the property containing the gated chain link fence. He points out that all the instances listed by Ms. Carlsson in which she herself needed access to 89 South Main Street involved temporary access over the fence separating the two properties, rather than actual removal of the fence, and merely constituted neighborly temporary permission or license but did not rise to the level of an easement. He warns that in the event that 89 South Main Street was ever structurally destroyed, the Town of Islip would probably require the new structure to be built abutting the sidewalk at South Main Street with a backyard, similar to 85 South Main Street, and that imposing an easement would be an inverse condemnation and likely render the defendants' parcel less valuable or useless. Mr. Foschi adds that it would eliminate the defendants' ability to sell the property to someone who wanted to demolish the current building set back on the property and build a new commercial building by setting it on the lot line at South Main Street. Mr. Foschi indicates that Ms. Carlsson is considering possible retirement and now seeks this easement, which never existed, to make her property more valuable.
Here, the plaintiff failed to establish its entitlement to summary judgment with respect to an implied easement from pre-existing use over a portion of the property currently owned by the defendant 3MF, Inc. (see, Michalski v Decker, 16 AD3d 469; Sharper Properties Enterprises, Inc. v Hubbard Sand Gravel, Inc., 12 AD3d 494). The maps submitted by the plaintiff do not provide clear and convincing evidence that during the unitary ownership of the two parcels of property prior to 1935, a right-of-way was established over 89 South Main Street, through its parking lot, and that the right-of-way was physically obvious and apparent upon reasonable inspection prior to the separation of title (see, Pastore v Zlatniski, 122 AD2d 840, 841; cf. Ryerson Tower, Inc. v. St. James Towers, Inc., 131 AD2d 744, 745). Said maps indicate that there was once what appears to be a very large house on the united parcels of property, then while the parcels were still united, the house disappeared and a building abutting the sidewalk came into existence, similar to the current building at 85 South Main Street numbered 85, as well as a building to the rear of the parcel, a beer warehouse, where the auto shop is currently located at 89 South Main Street numbered 85 ½, together with an attached shed numbered 85 . The maps, however, fail to show any driveways or private roadways or entrances or exits onto South Main Street, just the buildings within the enclosed lot lines. In addition, although Ms. Carlsson relies on a survey dated November 11, 1980 of 85 South Main Street indicating a frame garage with attached concrete pad or apron in the rear and speculates that Mr. Ongania removed the garage from the property and that said concrete pad led to or from the garage to and over 89 South Main Street, Mr. Ongania's affidavit is silent as to the existence of the garage, why he dismantled it, if he did, and the purpose, location and use of said garage and the concrete pad or apron and whether said pad or apron continued onto 89 South Main Street at the time of his purchase of 85 South Main Street. Ms. Carlsson states that portions of the concrete pad or apron are still in existence and submits color photographs showing patches of concrete surrounded by vegetation. Thus, based on the proffered evidence, it would be mere speculation to find that, prior to 1935, the occupants of the plaintiff's building used the current parking lot area of 89 South Main Street from the currently fenced area in between the two properties to gain access to South Main Street and that said use was so continued and obvious or manifest as to show that it was meant to be permanent (see, Beretz v Diehl, 302 AD2d 808).
With respect to an easement by necessity created at the time of severance of the unity of ownership of the two parcels, the proffered proof raises an issue of fact as to whether there is an alternate means of access to the plaintiff's property from the northern boundary line (see, Michalski v Decker, supra; cf. West End Properties Assn. of Camp Mineola, Inc. v Anderson, 32 AD3d 928). Notably, the submitted evidence fails to demonstrate that the prior owner of 89 South Main Street at any time, either by words or actions, lead Mr. Ongania, Ms. Carlsson, the plaintiff or any other owner of 85 South Main Street to believe that they would have the use of his driveway and parking lot to access their backyard from South Main Street on anything but a temporary basis (see, Van Schaack v Torsoe, 161 AD2d 701). Ms. Carlsson states in her affirmation in reply that the prior owner of 89 South Main Street, Ortenzio "Artie" Cannarili, never told her that she needed his permission for access, but he simply asked that she give him reasonable notice of when she planned to enter so that he could move his vehicles the night before. She adds that this litigation is unrelated to her future plans but "has everything to do with the need to obtain access to the rear of 85 South Main Street for repairs and maintenance from time to time." Inasmuch as issues of fact remain, the request by the plaintiff for summary judgment on its complaint is denied.
The plaintiff also moves by order to show cause dated February 14, 2008 to extend the notice of pendency filed in this action for an additional three-year period on the grounds that the original notice of pendency was due to expire on March 6, 2008 and has only been extended pending the hearing and determination of this motion. The plaintiff asserts that there has been no delay in the discovery of the action and that the plaintiff has yet to be notified that the action has been added to the Court's trial calendar. The plaintiff is concerned that if the protection afforded by the notice of pendency is lost, it will be possible for the defendant corporation to convey 89 South Main Street potentially free of the plaintiff's claims. Note of issue was filed on October 25, 2007.
In opposition to the motion for an extension of the notice of pendency, the defendants contend that the notice of pendency was originally filed by the plaintiff in bad faith in an attempt to hold up the closing of sale of 89 South Main Street and to obtain something that Ms. Carlsson never had, an easement, when 85 South Main Street already had a means of access into its rear yard from the gated chain link fence at the northern property line and the two properties have been separated by fences for at least 28 years.
The plaintiff filed an original notice of pendency on March 7, 2005 and then filed an amended notice of pendency, that was amended solely to add the defendant 3MF, Inc. as a party defendant, on November 10, 2005 in the Office of the County Clerk of Suffolk County. The order to show cause provided that the notice of pendency filed on March 7, 2005 would be extended pending the hearing and determination of this motion and the entry of an order thereon. No mention was made in the order to show cause of the amended notice of pendency which will expire on November 10, 2008. Inasmuch as the amended notice of pendency lists all of the defendants in this action and is currently effective, the request by the plaintiff to extend the original notice of pendency is denied as academic (see generally, CPLR 6501; 5303 Realty Corp. v O Y Equity Corp., 64 NY2d 313, 320; 8-89 Warren's Weed New York Real Property § 89.13).