Opinion
No. 11116/10.
2010-09-20
PETER WILLIAMS ENTERPRISES, INC., Plaintiff, v. NEW YORK STATE URBAN DEVELOPMENT CORP. and Brooklyn Arena, LLC, Defendants.
Charles Webb, Esq., Berger & Webb, Broadway, NY. Bryan Cave LLP, Philip Karmel, Esq.
Charles Webb, Esq., Berger & Webb, Broadway, NY. Bryan Cave LLP, Philip Karmel, Esq.
Jeffrey L. Braun, Esq., Kramer Leven Naftalis & Frankel.
Matthew Brinckerhoff, Esq., Emery Celli Brinckerhoff & Abady.
ABRAHAM G. GERGES, J.
Upon the foregoing papers, defendant New York State Urban Development Corp. d/b/a Empire State Development Corporation (ESDC) moves for an order, pursuant to CPLR 3211(a)(1) and (7), dismissing the complaint of plaintiff Peter Williams Enterprises, Inc. (PWE). Defendant Brooklyn Arena, LLC (the Arena), moves for the same relief.
Facts and Procedural Background
This dispute is the latest challenge to the condemnation of approximately 22 acres of property in downtown Brooklyn for the development of the Atlantic Yards Project (the Project), which includes the construction by Bruce Ratner, Forest City Ratner Companies LLC (FCRC) and its affiliates (hereinafter collectively referred to as Ratner), of an arena for the Nets, office buildings, residential units and other ancillary uses. The history of the Project and a summary of the legal challenges was set forth in detail in the decision that this court rendered on March 1, 2010 in the eminent domain proceeding (the Condemnation Proceeding) commenced by ESDC on December 23, 2009 and will only be repeated herein as relied upon by the parties in the pending motions ( Matter of New York State Urban Development Corp. [Atlantic Yards Land Use Improvement & Civic Project—Phase 1] ), 2010 N.Y. Slip Op 50301U [2010] ) (the Condemnation Decision).
Plaintiff, the former owner of the property located at 38 Sixth Avenue (Block 1127, part of Lot 48), which was improved with a one-family residence (hereinafter referred to as Lot 48), commenced this action seeking a judgment declaring that it is the owner of a portion of the adjoining lot, 24 Sixth Avenue (Block 1127, Lot 35) (hereinafter referred to as Lot 35). In making this claim, plaintiff relies upon what it characterizes as an “indenture,” which is dated September 20, 2001 and entitled “Easement Agreement.”
Pursuant thereto, Yoshizumi Corporation (Yoshizumi), as the owner of Lot 35, conveyed certain interests in the property PWE. The agreement also gave Chest Realty Corporation, the former owner of 475 Dean Street, an easement for egress and use of a fire escape, although the agreement is not signed by that corporation. Pursuant to a Condominium Declaration recorded with the City Register on October 24, 2001, Yoshizumi, as the sponsor, converted the 21 unit, four story building situated on Lot 35 to condominium ownership (the Condominium Declaration). The Declaration lists the lots that are subject to the conversion as being designed Block 1127, Lots 1001 to 1021 (Declaration at p. 262). Thereafter, on July 23, 2004, the Easement Agreement was filed. On the “Recording and Endorsement Cover Page” (the Cover Page), the City Register describes the property interest being recorded as an easement and under the “property data” section, lists 24 Sixth Avenue as “Block 1127, Lot 7501, entire lot.”
The court will refer to this agreement as the Easement Agreement, since that is the name given to it when it was executed.
On July 24, 2006, ESDC published a Notice of Public Hearing pursuant to Article 2 of the Eminent Domain Proceeding Law (EDPL) concerning the Project. In December 2006, ESDC adopted a Modified General Project Plan and on December 8, 2006, issued its Findings and Determinations pursuant to EDPL 204. PWE, as a prospective condemnee, was named as a plaintiff in two unsuccessful challenges to the Project, i.e., Goldstein v. Pataki (516 F3d 50 [2d Cir.2008], cert denied554 U.S. 930, 76 USLW 3674 [2008] ) and Matter of Goldstein v. New York State Urban Development Corp. (13 NY3d 511 [2009],rearg. denied14 NY3d 756 [2010] ). On December 23, 2009, ESDC commenced the Condemnation Proceeding in this court (Index No. 32741/09); plaintiff and several other condemnees opposed the petition. Pursuant to the Condemnation Decision, ESDC acquired title to the property needed for the first phase of the Project, including the lots at issue herein.
By order to show cause dated April 8, 2010 and returnable before this court on April 21, 2010, ESDC moved for Writs of Assistance to obtain vacant possession of the properties to be acquired for construction of Phase 1. On April 15, 2010, PWE and the Atlantic Yards Development Company, LLC (AYDC), entered into a settlement agreement pursuant to which PWE agreed to deliver vacant possession of Lot 48 to AYDC on or before April 30, 2010 for an undisclosed sum of money (the Settlement Agreement), it assigned all of its rights to receive further compensation from ESDC for Lot 48 to AYDC (the Assignment) and it released ESDC from any further liabilities arising from the condemnation of Lot 48 (the Release) (hereinafter collectively referred to as the Settlement Documents). PWE delivered vacant possession of Lot 48 on April 27, 2010.
On the next day, PWE's newly retained counsel wrote to ESDC, asserting that PWE continued to own property at 24 Sixth Avenue, i.e ., Lot 7501, which it alleged had not been acquired in the condemnation proceeding. When ESDC declined to address this alleged “error,” PWE commenced the instant action on May 4, 2010, arguing that ESDC did not acquire title to the portion of Lot 35 that it claims to own, contending that the Easement Agreement, as recorded, created Lot 7501 and that ESDC did not acquire title to Lot 7501 in the condemnation proceeding because it was not identified in the Notice of Public Hearing or in its Determination and Findings, and it is not listed in the acquisition map. On the same day, PWE issued a press release in which it claimed that New York State “forgot to condemn” a parcel of property necessary for construction of the Project.
ESDC's Contentions
In support of its motion to dismiss the complaint, ESDC argues that “based upon the timing of the announcement of this lawsuit, it is apparent that this meritless lawsuit was brought for the sole purpose of attempting to interfere with and delay the [Project] by preventing the Project's funding from proceeding and to extract money from Defendants.” In arguing that PWE does not own an interest in Lot 35, ESDC submits an affirmation from Joy A. Bobrow, senior tax counsel with the New York City Department of Finance, in which she states that a print out from the Department of Finance indicates that Lot 7501 is classified “RO” and that an “RO” classification is a “special condominium billing lot.” She thus avers that Lot 7501 is not a real tax lot in that the designation “Lot 7501” or a similar number is given to every condominium building in New York City by the Department of Finance for administrative billing purposes only, so that an individual or a corporation cannot have an ownership interest in a Lot 7501.
ESDC further asserts that this conclusion is supported by the fact that the Condominium Declaration for the property never mentions Lot 7501 and never conveys an ownership interest in Lot 7501 to PWE. Moreover, the sole basis for PWE's claim that it owns Lot 7501 is the Cover Page, a form generated by the Department of Finance Office of the City Register in approximately July 2004, three years after the Easement Agreement was executed; ESDC contends that the Cover Page cannot create or convey a property interest.In addition, ESDC argues that in the Easement Agreement, PWE is referred to as the owner of 38 Sixth Avenue and Yoshizumi is referred to as the owner of 24 Sixth Avenue. The Agreement goes on to provide that Yoshizumi gave PWE an easement for light, air and emergency exit and agreed not to vertically expand the building; PWE gave Yoshizumi an easement for egress through its property. ESDC thus contends that since the Easement Agreement created an easement that runs with the land, it did not convey any property interest in Lot 35 to PWE. ESDC further argues that when it condemned 38 Sixth Avenue, it also condemned PWE's interest in the easement. Accordingly, ESDC's pre-vesting offer of $423,000 to PWE represented $309,000 for its fee interest in 38 Sixth Avenue and $114,000 for the easement encumbering 24 Sixth Avenue. ESDC also argues that since it condemned both 24 Sixth Avenue and 38 Sixth Avenue, the easement encumbering 24 Sixth Avenue was extinguished by merger because ESDC acquired unity of interest of both parcels.
As another basis for arguing that the complaint should be dismissed, ESDC asserts that when PWE executed the Release on April 15, 2010, it agreed that it would not pursue any claims or causes of action that it has or could have brought against ESDC in the Condemnation Proceeding. ESDC contends that the language of the release is broad enough to cover any claim connected to the condemnation, so that PWE cannot succeed in the instant action.
Finally, ESDC argues the PWE's claim that it did not properly acquire PWE's interest in 24 Sixth Avenue is without merit. In this regard, ESDC explains that the Notice of Public Hearing and Determination and Findings identified Block 1127, Lots 1001–1021 (formerly Lot 35), with the address 24 Sixth Avenue (Unit No.s B1, 101–105, 201–205, 301–305, 401–405); Lot 7501 was not included because it does not refer to a parcel of property, as discussed above, and is used only for administrative billing purposes. Similarly, the Notice of Petition and Petition in the Condemnation Proceeding that were served upon PWE listed Block 1127, Condo Nos. 1001–1021, 24 Sixth Avenue, Former Lot 35, and specified that PWE was an easement holder. Also included was an acquisition map for 24 Sixth Avenue that described the property by metes and bounds. ESDC therefore contends that it properly acquired title to Lots 27 and 35 in the Condemnation Proceeding.
Finally, ESDC points out that when PWE filed its petition seeking review of the taking pursuant to EDPL 207, PWE referred to itself as “own[ing] the house located at 38 Sixth Avenue and an easement preventing building outside the current zoning envelope of the abutting property, 24 Sixth Avenue.” ESDC thus concludes that the allegation compels the conclusion that PWE does not own an interest in 24 Sixth Avenue.
The Arena's Contentions
In support of its motion, the Arena explains that it is an affiliate of FCRC and that it is the parent of Brooklyn Events Center, LLC, the entity that will build and operate the Barclays Center Arena, the stadium to be constructed at the Project site. The Arena adopts ESDC's arguments and incorporates them by reference.
The Arena also opines that “PWE's present claim is a shameless effort to shake down FCRC and its affiliates for more money.” In addition, the Arena argues that the Settlement Documents that were executed by PWE on April 15, 2010, when it agreed to vacate the premises, also preclude PWE from now claiming that it still owns an interest in Lot 7501.
Although the Arena restates ESDC's arguments in its moving papers, the arguments will not be repeated here.
PWE's Contentions
In opposition to the motions, PWE contends that ESDC's motion to dismiss is an improper attempt to amend the Notice of Public Hearing and the Determination and Findings in the underlying proceedings, nunc pro tunc, because “it forgot (or chose not) to include” Lot 7501, even though it was publicly recorded in the record of the Office of the Clerk of Kings County and unambiguously delineated by a metes and bounds description of the tax lot assigned to PWE's “indenture above the plane.” PWE argues that such an amendment is improper and that if ESDC wishes to acquire title to Lot 7501, it must do so in accordance with the EDPL, i.e., hold a public hearing pursuant to EDPL 202, make findings of fact pursuant to EDPL 204, commence a vesting proceeding, obtain a vesting order and provide just compensation. In so arguing, PWE emphasizes that in the Notice of Hearing and Findings and Determinations, ESDC chose to identify the subject properties by tax lot and block numbers, stating that the street addresses were included for ease of reference only and that in the event of any inconsistency between the street addresses and the tax blocks and lots, the block and lot information shall control.
PWE also argues that ESDC cannot rely upon the Easement Agreement at this stage of the action. In addition, it contends that although the document is titled “Easement Agreement,” it actually creates a property interest in that it conveys “property above the plane,” in an area not occupied by the then existing building, as is supported by the fact that it describes the parcel in metes and bounds, references itself as an “indenture” and acknowledges PWE's right to assign the parcel in its sole discretion. PWE further contends that ESDC improperly submits an attorney's affirmation in support of its motion and that her statements that a company cannot have an ownership interest in Lot 7501 and that Lot 7501 is not a true tax lot are inadmissible hearsay.
In addressing defendants' claim that the instant action is barred by the Settlement Documents that PWE executed when it settled its claim for compensation in the Condemnation Proceeding, PWE argues that the documents were specifically limited to claims pertaining to 38 Sixth Avenue, and do not mention Lot 7501, so that the interest that PWE claims to own in the property located at 24 Sixth Avenue is not effected. PWE concludes by asserting that even if Lot 7501 was condemned, PWE has never been compensated for the taking.
Defendants' Reply
In reply, both ESDC and the Arena note that PWE fails to address the arguments presented in support of the motions to dismiss. Most significantly, PWE does not address their assertion that Lot 7501 is not a true tax lot, as is evidenced by the Condominium Declaration, which does not mention Lot 7501, and the print out from the Department of Finance website, which indicates that Lot 7501 has a building code of RO, which means “Administrative Condominium Building Lot.” Defendants further argue that plaintiff cannot avoid the affect of merger of the easement into the ownership interest in 38 Sixth Avenue by claiming that the Easement Agreement does not create an easement, since the agreement, by its terms, clearly establishes an easement for light, air and emergency egress.
Standard on a Motion to Dismiss
In addressing the procedural issues raised in the instant motions, it is first noted that:
“Upon a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), the court must determine whether from the four corners of the pleading factual allegations are discerned which taken together manifest any cause of action cognizable at law' (Morad v. Morad, 27 AD3d 626, 627). Further, the pleading is to be afforded a liberal construction, the facts alleged in the complaint accepted as true, and the plaintiffs accorded the benefit of every possible favorable inference ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88). However, [w]hile the allegations in the complaint are to be accepted as true when considering a motion to dismiss[,] “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” ‘ (Garber v. Board of Trustees of State Univ. of NY, 38 AD3d 833, 834, quoting Maas v. Cornell Univ., 94 N.Y.2d 87, 91).”
(Salvatore v. Kumar, 45 AD3d 560, 562–563 [2007],lv denied10 NY3d 703 [2008];accord Sheridan v. Carter, 48 AD3d 444 [2008] [in reviewing a motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, the allegations in the complaint and in any supporting affidavit must be taken as true, and the plaintiff must be accorded the benefit of every possible favorable inference] ).
In order to prevail on a motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1), the documents relied upon must definitively dispose of plaintiff's claim ( see e.g. Blonder & Co. v. Citibank, 28 AD3d 180, 182 [2006];Bronxville Knolls v. Webster Town Ctr. Pshp., 221 A.D.2d 248, 248 [1995] ). Stated differently, to be entitled to dismissal as a matter of law founded upon documentary evidence, “the documentary evidence must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim” (Matovcik v. Times Beacon Record Newspapers, 46 AD3d 636, 638 [2007], citing Fleming v. Kamden Props., 41 AD3d 781 [2007];Martin v. New York Hosp. Med. Ctr., 34 AD3d 650 [2006];M. Fund v. Carter, 31 AD3d 620, 621 [2006] ). Thus, “[i]f the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action” (Zurich Depository v. Iron Mtn. Info. Mgt., 61 AD3d 750, 751 [2009], citing Peter F. Gaito Architecture v. Simone Dev., 46 AD3d 530 [2007] ).
It must also be recognized that “when the moving party offers matter extrinsic to the pleadings, the court need not assume the truthfulness of the pleaded allegations, but rather is required to determine whether the opposing party actually has a cause of action or defense, not whether he has properly stated one” (O'Donnell, Fox & Gartner v. R–2000, 198 A.D.2d 154, 154 [1993], citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] ). In this regard, it has been held that:
“Where, as here, evidentiary material is submitted on a motion to dismiss pursuant to CPLR 3211(a)(7), it may be considered in assessing the viability of a complaint, but unless the defendant demonstrates that a material fact alleged by the plaintiff “is not a fact at all” and that “no significant dispute exists regarding it,” the complaint should not be dismissed' (Yew Prospect v. Szulman, 305 A.D.2d 588, 589 [2003], quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977] ).”
(Sta–Brite Servs. v. Sutton, 17 AD3d 570, 571 [2005];accord Quesada v. Global Land, 35 AD3d 575, 576 [2006] ).
Tax Lot 7501
The court finds that defendants have demonstrated that tax lot 7501 does not refer to a parcel of property that was conveyed to PWE. In this regard, it is first noted that ESDC is not precluded from presenting the affirmation of Ms. Bobrow and the documentary evidence relied upon since, as discussed above, the court is permitted to consider evidentiary materials on a motion to dismiss. Herein, Ms. Bobrow's affirmation is offered to introduce information found on the website of the Department of Finance and to explain the computer code used, as was corroborated by the attached copy of the print outs. Thus, the court finds these documents sufficient to establish that Lot 7501 does not refer to a parcel of property that could be conveyed to PWE.
In addition, a review of the Easement Agreement and the Condominium Declaration make no mention of Lot 7501. Thus, even if Lot 7501 does exist as a separately identifiable tax lot, there is no evidence before the court to establish that it was ever transferred to PWE. Also significant in this regard is PWE's failure to come forward with any bills evidencing that it paid taxes or other maintenance expenses for the property since 2001, when the property interest was allegedly created. In so holding, the court also finds that the reference to Lot 7501 on the Cover Page of the recording of the Easement Agreement does not compel a contrary conclusion. Most significant in this regard is the fact that the Cover Page serves only to record a property interest; it cannot, standing alone, create a conveyance. Further, the information set forth on the Cover Page is consistent with the print outs from the Department of Finance and the affirmation submitted by Ms. Bobrow, since the reference to Lot 7501 states that it is for the “entire lot” of 24 Sixth Avenue. Thus, since it is not disputed that Yoshizumi owned 24 Sixth Avenue at the time that the Easement Agreement was executed, this language further supports the conclusion that the Easement Agreement, as recorded, did not intend to carve out a portion of 24 Sixth Avenue to be conveyed to PWE. Finally, the Cover Page clearly states that the recording pertains to an easement.
The court further finds that PWE is estopped from now arguing that it owns Lot 7501. “[J]udicial estoppel “applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted” ‘ (Thrift Assns. Serv. v. DeBuono, 255 A.D.2d 809, 813 [1998], quoting Cafferty v. Thompson, 223 A.D.2d 99, 102 [1996],lv denied88 N.Y.2d 815 [1996], quoting Oneida Motor Frgt. v. United Jersey Bank, 848 F.2d 414, 419 [1988],cert denied488 U.S. 967 [1988] ). “Under this doctrine, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position’ “ (Moore v. County of Clinton, 219 A.D.2d 131, 134 [1996],lv denied89 N.Y.2d 851 [1996], quoting Davis v. Wakelee, 156 U.S. 680, 689 [1895] ). Thus, since PWE maintained that it owned 38 Sixth Avenue and an easement over a portion of 24 Sixth Avenue in the EDPL 207 challenge to the Project and in seeking compensation in the Condemnation Proceeding, PWE will not now be permitted to argue that it owns an additional interest in 24 Sixth Avenue.
The court also notes that PWE so described itself in the Article 78 challenging the Project that is decided herewith ( PWE, et al. v. New York State Urban Dev. Corp., Sup Ct, Kings County, Index No. 15101/10).
The Easement
The Law
“An easement appurtenant occurs when the easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate (Selvaggi v. Skvorecz, 256 A.D.2d 324, 325 [1998], citing Green v. Mann, 237 A.D.2d 566 [1977];Strnad v. Brudnicki, 200 A.D.2d 735 [1994];49 N.Y. Jur 2d, Easements and Licenses in Real Property § 8). “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” (Henricksen v. Trails End Co., 303 A.D.2d 458, 458–459 [2003],lv denied100 N.Y.2d 506 [2003], citing Route 22 Assocs. v. Cipes, 204 A.D.2d 705 [1994] ). “Every instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law” (Stratis v. Doyle, 176 A.D.2d 1096, 1097–1098 [1991], quoting Real Property Law § 240 [3] ).
The intent of parties in creating an easement “should be gleaned solely from the language of the instrument creating the easement. It is only when language used in a conveyance is susceptible of more than one interpretation that the courts will look into surrounding circumstances, the situation of the parties, etc.” (Webster v. Ragona, 7 AD3d 850, 853–854 [2004] [citations omitted] ). Further:
“Mere assertion by one that contract language means something to him, where it is otherwise clear, unequivocal and understandable when read in connection with the whole contract, is not in and of itself enough to raise a triable issue of fact. It has long been the rule that when a contract is clear in and of itself, circumstances extrinsic to the document may not be considered (General Phoenix Corp. v. Cabot, 300 N.Y. 87) and that where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law and no trial is necessary to determine the legal effect of the contract (Brainard v. New York Central R.R. Co., 242 N.Y. 125;Matter of Western Union Tel. Co. [American Communications Assn.], 299 N.Y. 177).”
(Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456, 460 [1957] ).
As is also relevant to the instant dispute, it is well settled that:
“An easement is not a personal right of the landowner but is 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 (Western Union Tel. Co. v. Shepard, 169 N.Y. 170, 179;49 N.Y. Jur 2d, Easements and Licenses in Real Property, § 158, at 271). Thus, an existing easement appurtenant will pass to the grantee of a dominant estate even if the deed does not expressly refer to the easement (Tabor v. Bradley, 18 N.Y. 109, 111;49 N.Y. Jur 2d, Easements and Licenses in Real Property, § 159, at 272; 2 Warren's Weed, New York Real Property, Easements, § 1 .03[1][b] [4th ed] ). An easement acquired by grant remains as inviolate as the fee favored by the grant, unless ... conveyed, abandoned, condemned or lost through prescription' (Gerbig v. Zumpano, 7 N.Y.2d 327, 330).”
(Will v. Gates, 89 N.Y.2d 778, 783 [1997],rearg. denied90 N.Y.2d 936 [1997] ).
As is also relevant herein, it is clear that an easement is extinguished when the dominant and servient parcels come under common ownership ( see e.g, Simone v. Heidelberg, 9 NY3d 177, 180 [2007];Will, 89 N.Y.2d at 784). Moreover, “[w]hen [a condemnor] takes property through eminent domain, it takes in fee simple absolute and extinguishes all easements” (Thomas Gang, Inc. v. State, 19 AD3d 861, 863 [2005], citing Matter of Ossining Urban Renewal Agency v. Lord, 39 N.Y.2d 628, 630–631 [1976];Matter of County of Nassau [Grace Natl. Bank], 256 AppDiv 1094, 1095 [1939];accord City of Syracuse Indus. Dev. Agency v. ExxonMobil Oil, 5 AD3d 1114, 1116 [2004],appeal dismissed3 NY3d 656 [2004] [the consequence of an order granting a petition to acquire title to real property by right of eminent domain is the extinguishment of an easement of access over the property] ).
Discussion
As a threshold issue, PWE's assertion that the court cannot rely upon the terms of the Easement Agreement at this stage of the action is lacking in merit ( see generally Snyder v. Voris, Martini & Moore, 52 AD3d 811, 812 [2008] [the court considered a contract of sale in holding that the documentary evidence submitted by defendant resolved all factual issues in its favor as a matter of law]; McGuire v. Sterling Doubleday Enters., 19 AD3d 660, 662 [2005],lv denied7 NY3d 701 [2006] [the court relied upon the terms of a lease agreement in dismissing plaintiff's breach of contract claim for failure to state a cause of action]; Biondi v. Beekman Hill House Apt., 257 A.D.2d 76, 81 [1999],affd94 N.Y.2d 659 [2000] [the court considered the terms of a settlement agreement in determining that plaintiff did not state a cause of action] ).
Herein, a review of the Easement Agreement compels the conclusion that Yoshizumi intended to convey to PWE only an easement for light, air and emergency egress, and that it did not intend to convey an interest in Lot 35. More specifically, the agreement provides that “Yoshizumi grants and releases unto PWE and their heirs and Assigns forever the right to unrestricted light and air over the Restricted Area;” that “Yoshizumi shall be restricted from constructing any buildings, structures or extensions in the Restricted Area;” that “Yoshizumi also acknowledges that with regard to any vertical expansion of its structure, same shall be limited to removable enclosures less than ten (10) feet high placed on rooftop patio areas and set back a minimum of six (6) feet from the exterior wall;” and that “Yoshizumi grants an easement across the Restricted Area in favor of PWE and its heirs and assigns forever, for emergency purposes only, for as long a time as it be required by law for the respective premises involved.” As is also relevant, Schedule C–1 to the Easement Agreement, which is titled “EASEMENT to Peter Williams Enterprises, Inc.” sets forth a metes and bound description of the Restricted Area, which it describes “as the air light easement” in favor of PWE. The diagram of the property also refers to the “area of easement in favor of” PWE. Thus, the court concludes that the language of the Easement Agreement unequivocally establishes that pursuant thereto, Yoshizumi intended to grant PWE an easement, and not an interest in Lot 35 and/or Lot 7501.
Having so held, the above discussed general principles of law compel the conclusion that after ESDC acquired title to Lot 48, which acquisition is not contested by PWE, ESDC acquired the easement over Lot 35 by operation of law, since it is clear that an existing easement appurtenant will pass to the grantee of a dominant estate even if the deed does not expressly refer to the easement (Will, 89 N.Y.2d at 783;Tabor, 18 N.Y. at 111). In addition, since an easement is extinguished when the parcels come under common ownership, the easement was extinguished when ESDC acquired title to both the dominant and the servient estates, i.e., 24 Sixth Avenue, 38 Sixth Avenue and 475 Dean Street ( see Simone, 9 NY3d at 180;Will, 89 N.Y.2d at 784). Finally, since ESDC took the subject properties through eminent domain, it took title in fee simple absolute and extinguished all easements ( see Thomas Gang, Inc., 19 AD3d at 863;City of Syracuse Indus. Dev. Agency, 5 AD3d at 1116).
Accordingly, the above discussion demonstrates that PWE cannot rely upon the Easement Agreement to establish that it owns an interest Lot 35 and/or Lot 7501.
The Settlement Documents
The Law
It is well settled that the “[i]nterpretation of [a] contract is a legal matter for the court, and its provisions establish the rights of the parties and prevail over conclusory allegations of the complaint” (805 Third Ave. Co. v. M.W. Realty Assos., 58 N.Y.2d 447, 451 [1983] [internal citations omitted] ). “Clear and unambiguous terms should be understood in their plain, ordinary, popular and nontechnical meaning” (Lopez v. Fernandito's Antique, 305 A.D.2d 218, 219 [2003], citing Bethlehem Steel Co., 2 N.Y.2d at 459;Airco Alloys Div. v. Niagara Mohawk Power, 76 A.D.2d 68, 77 [1980] ). Further, “[t]he law is well settled that a release is merely a species of contract and, as such, its construction is governed by the same principles of law applicable to other contracts” (Aetna Casualty & Sur. Co. v. Jackowe, 96 A.D.2d 37, 41 [1983], citing Mangini v. McClurg, 24 N.Y.2d 556, 562 [1969];Record v. Royal Globe Ins. Co., 83 A.D.2d 154, 158 [1981],appeal withdrawn58 N.Y.2d 1116 [1983] );accord Greenebaum v. Barthman, 210 A.D.2d 160, 160–161 [1994] [the construction of an unambiguous written release, which is a form of contract whose interpretation is governed by principles of contract law, is for the court] ). Similarly, these general principles of contract interpretation apply to settlement agreements ( see e.g. Fernandez v. Price, 63 AD3d 672, 675–676 [2009] ), and to stipulations ( see e.g. Scherer v. North Shore Car Wash Corp., 72 AD3d 927, 929 [2010] ).
Discussion
The court finds defendants' reliance upon the Payment Agreement, the Assignment and the Release to be unpersuasive in that the language of all three documents establishes that they are limited to PWE's interest in Lot 48. Accordingly, since the claim at issue herein pertains to Lot 35, these documents cannot be construed as precluding petitioners from maintaining the instant action.
Alleged Impropriety of the Condemnation Proceeding
Inasmuch as PWE's claim that ESDC did not properly acquire title to Lot 7501 in the Condemnation Proceeding is premised upon its contention that it is the owner of the lot, and its claim of ownership has been rejected above, the court will not further address this claim.
Conclusion
For the above stated reasons, the motions to dismiss the complaint are granted and the action is dismissed.
The foregoing constitute the order, decision and judgment of this court.