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State of New York
Supreme Court : County of Monroe
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Theodore L. Smith,
Plaintiff,
- against - Index No. 97/10388
Kathy Y. Cole,
Defendant.
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MEMORANDUM DECISION
ANDREW V. SIRACUSE, J.
Plaintiff Theodore Smith seeks a permanent injunction forbidding defendant Kathy Cole from blocking a driveway running over her property to the backyard parking area of his property. The two parcels, 38 Quincy Street and 30-32 Quincy Street, were previously in common ownership; in 1980 one David Malone owned both. At that time he built a single shared driveway and two back yard parking areas, one on each parcel. He did not record any deed evidencing this arrangement, but it was apparent upon inspection and in the surveys, including one furnished to the defendant when she purchased 38 Quincy Street.
Subsequent to this construction Malone mortgaged both properties, eventually losing them to foreclosure in 1996. Before the foreclosure sale was consummated but after the notice of pendency he recorded a driveway agreement setting out the rights of the dominant parcel, 30-32 Quincy Street. Because this act postdated the notice of pendency it was of no effect, and plaintiff recognizes this fact.
After the foreclosure sale defendant Kathy Cole bought 38 Quincy Street, the servient estate.
Disagreements arose over the use of the shared driveway and she has threatened to block the plaintiff and the tenants of 30-32 Quincy Street from using the driveway. She has stated in a letter her intention of building a chain-link fence to cut off access.
This action followed, and the status quo has been maintained through a Temporary Restraining Order signed on October 15, 1997. At present the court is called upon to decide if a preliminary injunction should be granted the plaintiff.
It is well-settled that the applicant for a preliminary injunction must show a likelihood of success on the merits, danger of irreparable injury for which damages are inadequate, and a balance of equities in favor of the injunction (see, for example, Aetna, Inc. v Capasso, 75 NY2d 860). All three criteria are met in this application.
First of all, the plaintiff has set out a case for an easement by implication, also known as an easement by implied grant. The defendant has argued that there has been no hostile use for the prescription period, and that because on-street parking is available there is no necessity for the claimed easement. This is a misunderstanding of the types of easements and the requirements for each. The plaintiff does not claim an easement by prescription, as the use of the shared driveway was permissive, at least from 1980 to 1996. Nor does he claim an easement by necessity. He argues that Malone's actions constituted an easement by implication. The difference between these two was recently set out by the Third Department in Pickett v Whipple :
To establish an easement by implication it must be shown that (1) there was a 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 to the beneficial enjoyment of the land (see, Kusmierz v Baan, 144 AD2d 829, 830).
As for an easement by necessity, in addition to establishing unity of title, plaintiff must also show that at the time of the severance an easement over defendant's property was absolutely necessary in order to obtain access *** (see, U.S. Cablevision Corp. v Theodoreu, 192 AD2d 835, 838; Astwood v Bachinsky, 186 AD2d 949) (216 AD2d 833, 834-5).
In the present case the unity and subsequent separation are both clearly made out, as well as the obvious quality of the driveway's use. And while on-street parking might be available in the vicinity of 30-32 Quincy Street, the backyard parking area requires the driveway for access. Eliminating that driveway significantly if not completely eliminates the beneficial use of that part of the property.
The absence of any instrument evidencing the easement, recorded or not, is not an insurmountable obstacle:
[I]t is settled law that "[w]hether an easement by implication has been created depends on the intention of the parties at the time of the original conveyance, 'with the most important indicators of the grantor's intent being the appearance of the subdivision map and the language of the original deeds' " (Clegg v Grasso, 186 AD2d 909, 910-911, quoting Firsty v De Thomasis, 177 AD2d 839, 841; accord, Heim v Conroy, 211 AD2d 868, 870; see, De Ruscio v Jackson, 164 AD2d 684, 687; Fischer v Liebman, 137 AD2d 485, 487; 2 Warren's Weed, New York Real Property, Easements, ยง 6.04 [4th ed] ). The intention of the grantor is to be considered in light of the surrounding circumstances (see, Tarolli v Westvale Genesee, 6 NY2d 32, 34; Fischer v Liebman, supra, 137 AD2d at 487); whether or not a map was filed, and if it was filed, by whom and when, are merely factors which may bear on the grantor's intent (see, Clegg v Grasso, supra, 186 AD2d at 911; De Ruscio v Jackson, supra, 164 AD2d at 686-687) (B.J. 96 Corp. v Mester, 222 AD2d 798).
The surveys and the conduct of Malone are all clear showings of his intent to create an easement.
Finally, the foreclosure cannot extinguish the easement:
It is the law of this State that an easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession. See, e. g., Holloway v. Southmayd, 139 NY 390, 402; Johnson & Co. v. Cox, 196 NY 110, 121; Fiebelkorn v. Rogacki, supra, 280 App Div at pages 21-22 (Gerbig v. Zumpano, 7 NY2d 327)
Although no reported case has considered the effect of a foreclosure on an easement by implied grant, the Fourth Department long ago ruled that such an easement was not extinguished by a tax sale (see, Blenis v. Utica Knitting Co., 73 Misc 61, affd 149 App Div 936, affd 210 NY 561). The rule for foreclosures should be no different.
The other two criteria are easily dealt with. The elimination of off-street parking would have a permanent effect on the value of rental property, both in its market value for sale and in its ongoing desirability to tenants. The loss of rents brought about by the loss of off-street parking would be on-going and impossible to calculate. An injunction would be a superior way to guard the plaintiff's rights.
Finally, the open character of the driveway, its long history of use, and its presence on the surveys all contribute to the court's decision that the equities favor the plaintiff at this point. The defendant bought the property with full knowledge of the driveway and its use.
The plaintiff is granted the preliminary injunction, and the court anticipates that the final determination of the action will not be unduly delayed. Pending that determination, however, the court is required under CPLR 6312(b) to impose an undertaking. The plaintiff must give an undertaking in the amount of $5000, either in U.S. funds or bonds or secured by real property within the state (CPLR 2503 [a]). Counsel for the plaintiff may prepare the order.
DATED: Rochester, New York
March 20, 1998 Andrew V. Siracuse, J.S.C.
Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.
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