Opinion
05-15152.
October 19, 2009.
ALBANESE ALBANESE, LLP, Attorneys for Plaintiff, Garden City, New York.
JOSEPH D. MIRABELLA, ESQ, Attorneys for Defendants Freund, Mastic, New York.
SMITH, FINKELSTEIN, LUNDBERG, et al., Attorneys for Defendants Cahn, Lefkowitz Hecht, Riverhead, New York.
CORRECTED DECISION
Upon the following papers numbered 1 to 51 read on these motions and this cross motion for summary judgment Notice of Motion/Order to Show Cause and supporting papers 1 — 21; 22 — 28; Notice of Cross Motion and supporting papers29 — 44; Answering Affidavits and supporting papers45 — 47; Replying Affidavits and supporting papers48 — 51; Other ___: (and after hearing counsel in support and opposed to the motion) it is,
ORDERED the motion by plaintiff summary judgment is granted; and it is
ORDERED that the cross motion by defendants Helen Freund and Theodore Freund is denied; and it is further
ORDERED that the motion by defendants Brian Cahn, Lawrence Lefkowitz and Donald Hecht, as executors of the estate of Milton Cahn, is granted in part and denied in part.
Plaintiff Theodore G. Klumpp, Jr. ("plaintiff") moves for an order granting him summary judgment as to his first and third causes of his underlying complaint brought pursuant to Article 15 of the Real Property Actions and Proceedings Law to compel a determination as to his claim that he is the owner in fee simple of certain real property (described herein as parcel C) by adverse possession and granting him an easement by prescription as to certain other real property (described herein as parcels A and B). He submits, in support, an affidavit, copies of the pleadings, copies of decisions previously rendered by this court in connection with this matter, photographs, a copy of a document dated August 1, 1978 titled "Right of Way." survey maps, and an affidavit from a land surveyor. Defendants Helen Freund and Theodore Freund (the "Freunds") move separately for an order declaring them fee simple owners of a 15-foot driveway on their property; barring plaintiff and defendants Brian Cahn, Lawrence Lefkowitz and Donald Hecht, executors of the estate of Milton Cahn ("Cahn" or "Cahn estate"), from claiming an interest in the driveway and enjoining plaintiff and Cahn from trespassing on or damaging the driveway or hindering the full use of same by the Freuds; denying plaintiff and Cahn an easement over any portion of the driveway and restraining and permanently enjoining plaintiff from accessing a waterway known as Fish Creek via the Freunds' property. The Freunds provide, in support, an affidavit, a survey and deed, a document dated April 1999 titled "Rider" containing interlineations, an "Easement Agreement" dated August 20, 1999 also containing interlineations, and an aerial photograph and survey. The Cahn estate cross-moves for an order dismissing plaintiff's complaint and declaring plaintiff has no interest in the Cahn estate's real property by adverse possession or prescriptive easement or, alternatively, granting the Cahn estate an easement of necessity. Cahn provides, in support, affidavits by counsel and Jean Litz, the widow of Milton Cahn; copies of the pleadings; a drawing titled "Sketch of Relationship of the Properties"; a document titled "Right of Way," dated August 1, 1978; an excerpt from plaintiff's pretrial deposition testimony; and copies of a survey and deed. Plaintiff and Cahn have each submitted replies and all parties have submitted memoranda of law.
The various properties discussed herein are best visualized as four quadrants — two each to the west and east of the disputed property. The disputed property, which bisects the four properties, is bordered on the north (top) by Cedar Lane and on the south (bottom) by Fish Creek. Plaintiff's property is the top right quadrant, bordered on the west and south by the Cahn property. The Cahn's property, the bottom right quadrant, is shaped like a flag pole with the "pole" section extending north to Cedar Lane. The Freunds' property, also shaped like a flag pole with the pole extending north to Cedar Lane, occupies the bottom left quadrant and runs to the west of the Cahn property. The flag pole portions of both the Cahn and Freud properties each front Cedar Lane for fifteen feet — the separate pieces totaling thirty feet of frontage on Cedar Lane. Another property, not involved in this action, is situated to the northwest (top left quadrant) bordered on the east and south by the Freunds' property.
A brief recitation of the history of the respective properties is instructive. 52 Cedar Lane, Remsenburg, New York was conveyed to decedent Milton Cahn by deed dated April 9, 1980. He also owned an unimproved parcel adjacent to the 52 Cedar Lane lot (now known as 54 Cedar Lane), which he sold to the Freunds in 1999. By deed dated September 30, 1981, 50 Cedar Lane was conveyed to plaintiff and his former wife, and on June 20, 2001, plaintiff's former wife conveyed her interest in the property to plaintiff has a garage on his property which, prior to 2001, was accessed by a driveway on the flagpole sections of the properties. The driveway, measuring twenty feet wide, ran the full fifteen-foot width of the flag pole section of the Freunds' property and five feet of the adjoining flag pole section of the Cahn property. The remaining ten feet of the Cahn property, immediately adjacent to plaintiff's property, appears on various surveys as a cultivated area with an access to plaintiff's garage. In 2001 the Freunds installed a fifteen-foot driveway on their property. There is also another circular driveway on plaintiff's property permitting access to Cedar Lane. The Freunds' fifteen-foot section is identified by the parties as parcel A, the adjacent Cahn five-foot section as parcel B, and the Cahn ten-foot parcel as C. For ease of reference, the court will also identify the parcels in the same manner. The Freunds erected a fence in April 2005 on what they contend is their property, thereby curtailing plaintiff's access to his garage and to Fish Creek. By decision of this court dated June 7, 2006, this Court upon reargument of a prior decision dated January 27. 2006, granted plaintiff's application for a preliminary injunction directing the removal of the fence.
By his motion, plaintiff contends that, from the time he first acquired title, he has used the driveway which provided access to his garage. He also claims to have cultivated the property immediately to the east of his parcel, owned by Cahn (parcel C), with extensive landscaping and that he installed an apron over a portion of that property in front of his garage. He alleges that such usage and improvements were for a period in excess of ten years. Plaintiff further claims he believed that Cahn had an easement over the driveway to access Cedar Lane from his house, and that he had a reciprocal easement over the southerly portion of the Cahn property to access Fish Creek. Plaintiff argues that the rights of both Cahn and the Freunds to use parcels A and B are encumbered by easements by prescription in his favor, and that they do not have the right to interfere with his use of the driveway.
By their motion, the Freunds point first to the deeds to the respective properties of the parties and, specifically, to the absence of any language which might be construed as granting plaintiff a right of access to their portion of the flagpole driveway or to Fish Creek via their property. They also contend that plaintiff's lot was held single and separate from both defendants' lots; that access to plaintiff's lot is via a circular drive from Cedar Lane; and that the only access to defendants' property from the public roadway is via their respective fifteen-foot "pole" portions of their flag lots. Further, Helen Freund, by her affidavit, states that at the time she and her husband purchased their property, they entered into a limited easement agreement with Cahn, dated August 20, 1999, which acknowledged that the common driveway was to be used jointly by the Cahns and the Freunds and that such common use was to terminate in August 2000 or when the Freunds improved their fifteen-foot portion of the driveway. The Freunds ultimately improved their driveway, which they contend, contrary to plaintiff's assertions, was practically impassable and had not been improved in any fashion. The Freunds also allege that, "as a neighborly accommodation" they did not bar Cahn from using their improved driveway in part because his use of his property was "seasonal at best," but that they "repeatedly told [plaintiff] not to access his property via the driveway, as the driveway did not belong to him and to refrain from parking cars on the driveway." In the fall of 2004 the Freunds noticed plaintiff installing curbing which "neither abutted nor infringed in any way upon [their] driveway." They believed, however, the installation of the curbing was consistent with plaintiff's intent to "use [their] driveway as his own, and [which they] refused to permit. . ." As a result, in the spring of 2005, the Freunds installed a split rail fence on their property line. They claim, as to Cahn, that they paid him full fair market value for their property, which entitles them to a private driveway, and that the terms of the limited easement agreement evidences their intent from the outset to build such a driveway.
By its cross motion, the Cahn estate relies in part, on an affidavit by Jean Litz ("Litz"), Milton Cahn's widow, wherein she states, among other things, that plaintiff's use of his portion of the strip was with Cahn's consent. It also moves, in the event an easement in plaintiff's favor is found, that the Cahn estate be granted an easement of necessity over plaintiff's property. The Cahn estate points to the vegetated portion (parcel C) of the disputed property which, it argues, was "occupied" by utility poles and lines servicing the Cahn home, as proof that plaintiff's use was not exclusive. The Cahn estate also claims, through Litz, that the relationship between Cahn and plaintiff was cordial, thus negating the requirement that plaintiff's use of the property be hostile. It also contends that the vegetated portion had been professionally landscaped prior to plaintiff's purchase of his property and that any further cultivation by him was minimal, thus, negating a claim that plaintiff's use was open and notorious. Finally, the Cahn estate contends that plaintiff cannot demonstrate the requisite continuous possession for the statutory ten-year period, as plaintiff's testimony revealed that Cahn installed public water over the strip of land in the late 1990's and that he entered into an agreement with Cahn and Jean Litz to install Belgium block curbing and an apron in 2004. Since plaintiff's lawsuit was commenced in 2005, the Cahn estate contends that the ten-year statutory period was reset by the subsequent indicia of ownership by Cahn. As to its alternate request that the court find an easement by necessity, the Cahn estate notes that the prohibition of its use of the parcel C would eliminate its access to Cedar Lane, rendering it landlocked.
The various motions are addressed herewith seriatim. Plaintiff's claim of title to parcels A and B is by an easement by prescription and to parcel C by adverse possession. To establish a claim for prescriptive easement, one is required to demonstrate, by clear and convincing evidence, adverse, open, notorious, and continued and uninterrupted use of property for a period of ten years ( Di Leo v Pecksto Holding Corp. , 304 NY 505, 512, 109 NE2d 600). Seasonal use will not preclude the proponent from establishing a prescriptive easement, although the burden remains to show that the use was continuous and uninterrupted for, and commensurate with, seasonal use ( see Alexy v Salvador , 217 AD2d 877, 630 NYS2d 133 [3rd Dept 1995]). Upon establishing those elements, the burden shifts to the opponent of the motion to show the use was permissive, since the presumption arises that the use was hostile ( see J.C. Tarr, Q.P.R.T. v Delsener , 19 AD3d 548, 800 NYS2d 177 [2d Dept 2005]). Plaintiff asserts that his use of the parcels at issue commenced upon his purchase of the property in 1981 and that, until 1999, he alone undertook to maintain the driveway. He further argues that any assertion by the Freunds that their actions after they purchased their property preclude a finding of a prescriptive easement in his favor must fail, since they did not take title until after the requisite time period had passed. Similarly, it is contended that the Freunds' claim that plaintiff is able to access his property via the circular driveway is of no moment, as plaintiff has established the requisite elements of a prescriptive easement as to the disputed property and does not allege entitlement to an easement by implication or necessity. With respect to the portion of the property owned by Cahn, plaintiff notes that his use of the driveway (parcel B) from 1981 is not disputed, although it is asserted that the use of parcel C, the area adjacent to plaintiff's garage, was permissive. Litz, by her affidavit, alludes to conversations between plaintiff and her late husband regarding requests by plaintiff to remove of vegetation — although, as noted by plaintiff, those conversations are not identified with any specificity, nor does she claim to have been a party to the conversations. Litz describes those conversations as cordial and essentially claims plaintiff sought her husband's permission to improve the lot. She claims to have assumed active management of the property in 2000, which again, plaintiff counters, was after the requisite time period and, thus irrelevant to the instant matter.
Plaintiff has owned his property for 28 years. It is not disputed that at the time he originally purchased the property there was an asphalt driveway which led from his garage to the driveway and, other than vague assertions by Litz that she overheard conversations between plaintiff and her late husband regarding work on parcel C, the submissions to the court do not undercut plaintiff's assertion that he cultivated the property. In fact, Litz's statements confirm plaintiff performed extensive landscaping work, albeit with consent. Further, Litz's contention that plaintiff's use of the parcel was permissive is belied by her admission that the costs of the improvements were "generously" borne by plaintiff. Specifically. Litz acknowledged that plaintiff replaced the asphalt garage apron with brick, added shrubs and other plants, and removed other vegetation. Plaintiff has demonstrated adverse possession with respect to parcel C. In this context it is unnecessary to show enmity or specific instances of hostility, rather it is sufficient to demonstrate that the possession constitutes an infringement upon the owner's rights ( see Greenberg v Sutter , 257 AD2d 646, 684 NYS2d 571 [2d Dept 1999]). Here, plaintiff has used the property in question in a manner "consistent with the property's character, location, condition and potential uses" ( Groman v Botar , 228 AD2d 412, 413, 644 NYS2d 58 [2d Dept 1996]).
The Freuds claim ownership in fee simple as to parcel A and B, and ask that plaintiff and Cahn be denied an easement over the driveway. The Cahn estate seeks an easement by necessity over parcel C. The latter motion is based on the fact that the Cahn real property will be landlocked without access to Cedar Lane. Plaintiff has demonstrated proof of his adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period ( see RPAPL 501; Turner v Baisley , 197 AD2d 681, 602 NYS2d 907 [2d Dept 1993]). Although plaintiff's assertion that the driveway was traversable is disputed by the Freunds, it is confirmed by Litz. Further, plaintiff's use of the driveway is consistent with the property's character ( see Gaglioti v Schneider , 272 AD2d 436, 707 NYS2d 239 [2d Dept 2000]). It appears that Cahn, in seeking an easement of necessity over parcel C, is conceding it has relinquished any claim over the driveway by the terms of the "Easement Agreement" with the Freunds. The Cahn parcel is thus landlocked. An easement by necessity is implied by operation of law when such easement is necessary for access to a piece of property. In asserting such easement it must be shown that there was unity and subsequent separation of title and that, at the time of severance, an easement over the servient estate's property was absolutely necessary ( Stock v Ostrander , 233 AD2d 816, 817). Here, Cahn, has demonstrated an easement is necessary for the beneficial enjoyment of its landlocked parcel.
Thus, the Court finds plaintiff is entitled to the entry of judgment declaring him to be possessed of an easement by prescription with respect to parcels A and B and to be the owner in fee simple, by adverse possession, of parcel C. Furthermore, Cahn is entitled to the entry of judgment declaring it has an easement by necessity over the improved existing driveway (parcels A and B) which permits it access to Cedar Lane. This is not meant to interfere with Cahn's ownership of parcel B.
The claims as to which summary judgment have been granted hereby are severed, and the parties' remaining claims shall continue.
Settle order.