Opinion
2012-12-12
Thomas BRENNAN, et al., appellants, v. Maria SALKOW, respondent.
Kitson & Schuyler LLP, Croton–on–Hudson, N.Y. (Peter Schuyler and Roseann K. Schuyler of counsel), for appellants.
PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
In an action pursuant to RPAPL article 15 to compel the determination of a claim to certain real property, in which the plaintiffs sought, inter alia, a judgment declaring that the plaintiffs have an easement by implication or necessity over the subject property, the plaintiffs appeal (1), as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (Goethels, Ct. Atty. Ref.), entered March 25, 2011, as, upon the parties' stipulation that the matter be referred to a court attorney referee to hear and determine, and upon evidentiary submissions and oral argument, adjudged that the plaintiffs are not entitled to an easement of ingress or egress over the subject property, and (2) from an order of the same court entered February 16, 2012, which denied their motion pursuant to CPLR 5015(a)(3) to vacate the judgment.
ORDERED that the judgment entered March 25, 2011, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the order entered February 16, 2012, is affirmed, without costs or disbursements.
Contrary to the plaintiffs' contention, the record does not show that the subject property benefits from an easement implied by grant. “[W]hen property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant” ( Bogan v. Town of Mt. Pleasant, 278 A.D.2d 264, 264–265, 718 N.Y.S.2d 181;see H.S. Farrell, Inc. v. Formica Constr. Co., Inc., 41 A.D.3d 652, 654, 838 N.Y.S.2d 628;Nassau Point Prop. Owners Assn., Inc. v. Tirado, 29 A.D.3d 754, 757, 815 N.Y.S.2d 674). In addition, in general, a “deed describing the land being conveyed as bounded by a road owned by the grantor creates an easement by implication in that road” ( H.S. Farrell, Inc. v. Formica Constr. Co., Inc., 41 A.D.3d at 654, 838 N.Y.S.2d 628), “unless the intention of the parties is to the contrary,” based on the circumstances ( Cashman v. Shutter, 226 A.D.2d 961, 962, 640 N.Y.S.2d 930, quoting Heim v. Conroy, 211 A.D.2d 868, 870, 621 N.Y.S.2d 210;see Glennon v. Mayo, 221 A.D.2d 504, 505, 633 N.Y.S.2d 400).
Here, contrary to the plaintiffs' contention, the mere descriptive reference to a “right-of-way” in a 1966 deed to the plaintiffs' predecessor did not give rise to an easement by implied grant benefitting the plaintiffs' property ( see Palma v. Mastroianni, 276 A.D.2d 894, 894–895, 714 N.Y.S.2d 537;see also Michalski v. Decker, 16 A.D.3d 469, 792 N.Y.S.2d 103). The plaintiffs' argument regarding an easement implied from a 1920 grant of part of their property is without merit ( see Palma v. Mastroianni, 276 A.D.2d at 894–895, 714 N.Y.S.2d 537;see also Michalski v. Decker, 16 A.D.3d 469, 792 N.Y.S.2d 103).
Further, as the Supreme Court determined, the plaintiffs failed to establish the existence of an easement implied from preexisting use upon severance of title ( see Sadowski v. Taylor, 56 A.D.3d 991, 993–994, 867 N.Y.S.2d 574;Beretz v. Diehl, 302 A.D.2d 808, 810–811, 755 N.Y.S.2d 122) or the existence of an easement by necessity ( see Silvercrest v. St. Christopher–Ottile, 194 A.D.2d 720, 721, 600 N.Y.S.2d 95).
The Supreme Court did not err in denying the plaintiffs' motion pursuant to CPLR 5015(a)(3) to vacate the judgment based on fraud, misrepresentation, or other misconduct, as the plaintiffs failed to present any evidence of fraud, misrepresentation, or other misconduct by the defendant ( seeCPLR 5015; Tornheim v. Blue & White Food Prods. Corp., 88 A.D.3d 869, 869, 931 N.Y.S.2d 244;Abacus Real Estate Fin. Co. v. P.A.R. Constr. & Maintenance Corp., 128 A.D.2d 821, 513 N.Y.S.2d 743).