Opinion
No. 7636/2008.
2012-07-5
Richard RIBELLINO, Plaintiff, v. 110 FIFTH STREET PRIVATE LLC, Defendants.
Marc J. Caruso, Esq., Caruso, Caruso & Branda, P.C., Brooklyn, attorney for plaintiff. Brad Coven, Esq., Goldberg & Rimberg PLLC, New York, attorney for defendant.
Marc J. Caruso, Esq., Caruso, Caruso & Branda, P.C., Brooklyn, attorney for plaintiff. Brad Coven, Esq., Goldberg & Rimberg PLLC, New York, attorney for defendant.
FRANCOIS A. RIVERA, J.
BACKGROUND
On March 7, 2008, plaintiff Richard Ribellino commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office. On March 19, 2008, the original defendant C & A Properties II Corp., (hereinafter C & A) filed a verified answer. Pursuant to a stipulation set forth below C & A was substituted by 110 Fifth Street Private LLC (110 Fifth Street).
The action, brought pursuant to Article 15 of the Real Property Actions and Proceedings Law, seeks an order 1) declaring the rights of the parties to the use of an easement burdening the defendant's adjoining property; and 2) damages for defendant's interference with plaintiff's use of the easement in question. Plaintiff's property is known as 22–36 2nd Avenue and 120–132 5th Street, more particularly described as Brooklyn Block 990, Lot 1(hereinafter the dominant estate). 110 Fifth owns the adjoining servient estate.
STIPULATIONS
During the course of litigation the parties have entered into two pertinent stipulations which has guided the course of the proceeding to the instant decision, order and judgment. The first stipulation resolved an order to show cause filed by the plaintiff on September 9, 2010, seeking to bind the defendant to the preliminary injunction and to bring in 110 Fifth Street Private LLC (hereinafter 110 Fifth) as a defendant in the action. That stipulation which was signed on October 22, 2010, by the plaintiff A & C and 110 Fifth, the parties consented to the discontinuance of the action against A & C, the substitution by 110 Fifth as a defendant, the waiver of jurisdictional defenses by 110 Fifth and permission for the plaintiff to amend the complaint. Thereafter, the plaintiff filed an amended summons and verified complaint and 110 Fifth interposed an answer with counterclaims. The counterclaims seek injunctive and declaratory relief in relation to the use of the easement.
The second stipulation, entered into on July 21, 2011, narrowed the litigation to a single issue of whether parking is a reasonable use of the easement. The stipulation states: “the parties have reach[ed] a resolution of the majority of the issues raised in the instant litigation except for a single issue concerning whether or not parking within Zones A & B as defined by the incorporated settlement agreement by Plaintiff, his companies, affiliates, agents, employees, invitees, successors, assigns, servants, independent contractors, tenants, subtenants and licensees is a reasonable or permitted use of the easement.” The parties may stipulate to narrow the issues to be heard and determined. Such stipulation will be upheld absent a violation of public policy (Hallock v. State, 64 N.Y.2d 224 [1984] ).
THE DISPUTE
The dispute giving rise to the instant action stems from an express easement contained within the deeds of the servient and dominant estates. The easement language is specific to ingress, egress and all other reasonable uses. Plaintiff contends that parking by him and his companies, affiliates, agents, employees, invitees, successors, assigns, servants, independent contractors, tenants, subtenants and licensees (hereinafter plaintiff) is a use contemplated within the grant and that such use does not unreasonably interfere with defendant's right to ingress and egress in the event that the parking is determined to be unreasonable. In the alternative, the plaintiff asserts that it has created an easement through prescription.
Conversely, the defendant asserts that parking on the easement by plaintiff and plaintiff's tenants unreasonably interferes with defendant's ingress and egress and that plaintiff has failed to establish an easement by prescription.
THE HEARING
In accordance with the stipulation an evidentiary hearing was held on November 15, 2011 and February 7, 2012, in Part 52, to determine the remaining and outstanding issue of parking on the easement. On November 15, 2011, Richard Ribellino testified and on February 7, 2012, Jack Marmurstein, the principal and manager of 110 Fifth testified. By stipulation of the parties, the plaintiff admitted nine exhibits and the defendant admitted eight exhibits into evidence. The stipulation was limited to consenting to the admission of the documents but not to their probative value.
Pursuant to CPLR 4213 the parties were afforded an opportunity to submit requests for findings of fact and did so. The Court makes the following findings of fact.
FINDINGS OF FACT
Plaintiff, Richard Ribellino, purchased the dominant estate located at Block 990 Lot 1 otherwise known as 22–36 2nd Avenue and 120–a32 5th Street Brooklyn, New York, on or about July 9, 1987. Plaintiff's property includes five (5) buildings, three (3) of which can only be accessed by car or foot by way of Fifth Street. Contained within plaintiff's deed for his property is an easement over Fifth Street, a street adjacent to the plaintiff's buildings.
Fifth Street is approximately 30 feet wide and 600 feet long. The easement exists over the first 298 feet, approximately, measured from 2nd Avenue down to Fifth Street. The defendant owns the property located at the end of Fifth Street and directly adjacent to the plaintiff's property (hereinafter the servient estate).
On August 25, 2010, defendant 110 Fifth acquired fee simple title to the servient estate which is comprised of three (3) parcels of property including Fifth Street from C & A Properties II Corp, the original defendant in this action.
The plaintiff and its tenants have utilized the easement for ingress and egress continuously since plaintiff acquired the property in 1987. Plaintiff has been parking on the easement during the day and overnight. Defendant has significant difficulty navigating in and out of the easement when there are cars parked along the easement. The inconvenience to the defendant is heightened when the cars are parked on the easement overnight. Parking is an unreasonable use of the easement.
The language of the easement at issue is contained in the deed dated November 19, 1950, from the Brooklyn Improvement Company to Kentile Floors, Inc. The language of the easement contained in the dominant estate's deed is:
“Together with access to and reasonable use of that part of the Private Road which is described above by metes and bound, by the Party of the Second Part, its successors, assigns and any person or persons for its or their advantage on foot or with animals or fronting on said Private Road ... provided that the right herein granted to use said Private Road ... shall be exercised in such manner as not to interfere with nor unreasonably obstruct the reasonable use of said Private Road ... by such other owners or occupants.”
The court notes that in Plaintiff's exhibit “7” there is an indenture between The Brooklyn Improvement Company and G.R. Holding Corporation dated April 30, 1958 which on its face appears to include an easement. The cover sheet to Exhibit “7” submits that the deed is for Block 997 Lot 1. No one offered testimony explaining the probative value of the document and its significance is not apparent. The document is therefore disregarded.
LAW AND APPLICATION
An easement may be created by grant, by prescription, or by necessity. The easement will run with the land when it is conveyed in writing subscribed by the person creating the easement which burdens the servient estate. (see Green v. Mann, 237 A.D.2d 566 [2d 1997] ). “Easements by express grant are construed to give effect to the parties' intent, as manifested by the language of the grant. Thus the language of the easement is controlling, and if a grant is specific in its terms, it is decisive of the limits of the easement” (Gilliand v. Acquafredda Enterprises, LLC 92 AD3d 19 [1d 2011] [internal citations omitted] ). An easement in general terms will be construed to include any reasonable use to which the land may be devoted. (see, Missionary Society of Salesian Congregation v. Evrotas, 256 N.Y.86 [1931] ).
The easement in this matter was created by grant and is appurtenant to the land as it was expressly created in the deed between Brooklyn Improvement Company and Kentile Floors, LLC. The language of the easement is clear and unambiguous, granting a broad use of ingress and egress and all other reasonable uses. Clearly, the easement language does not limit the plaintiff's use to only ingress and egress (see e.g. Missionary Society of Salesian Congregation, 256 N.Y.86 [1931] 89–90). In fact, the only language limiting the dominant estate is that its use must be “exercised in such manner as not to interfere with nor unreasonably obstruct the reasonable use of said Private Road ... by such other owners or occupants.”
The limiting language contained within the grant is in conformity with the generally accepted rule of law that “[t]he servient tenement is prohibited from unreasonably interfering with the rights of the plaintiffs to use the easement. Whether an obstruction constitutes unreasonable interference is generally a question of fact” (Green, 237 A.D.2d at 567–568 [2d 1997][internal citations omitted] ). However, in this matter, the parties have stipulated that the Court will determine the question of whether parking by the plaintiff and his assigns is a “reasonable use.”
Where the language of the grant is certain and unambiguous, the surrounding circumstances and the situation of the parties may be examined with a view to determining the parties' true intent (Route 22 Associates v. Cipes, 204 A.D.2d 705 [2d 1994] ). The intent of the parties defines its terms (Lewis v. Young, 92 N.Y.2d 443 [1998] ). Thus the language of a deed granting an easement should be interpreted in light of the intention or purpose of the parties and the conditions existing when it was made (Irving Trust Co. v. Anahma Realty Corporation, 285 N.Y. 416 [1941] ), in accordance with the general rules of construction applicable to deeds. The intent of the grantor is the important consideration (Dillion v. Moore, 269 A.D. 1006 [3d 1945] ).
The court may consider the terms of the grant, the facts and circumstances attendant to the transaction, the situation of the parties, and the condition of the easement for the purposes of ascertaining intent (see e.g. Sassouni v. Krim, 68 AD3d 968 [2d 2009] [citations omitted] ). In contrast, when the terms of a grant of an easement are vague and ambiguous, the grant of an easement is construed most strongly against the grantor (Sedor v. Wolicki, 206 A.D.2d 854 [4d 1994] ).
The plaintiff does not assert that the grant is vague or ambiguous nor does the court find it to be so.
Defendant's principal testified that when the plaintiff parks in the easement the lane is narrowed. The ingress and egress becomes significantly more difficult when the delivery trucks are forced to double park next to plaintiff's already parked vehicles which a daily occurrence. The easement is so narrowed that the buses the defendant services are unable to pass through to defendant's property and cannot egress onto the street. The problem is exacerbated by overnight parking. The parking therefore creates a situation where the defendant cannot reasonably use the easement to ingress and egress in an unobstructed manner. Therefore, the plain reading of the easement leads this court to hold that parking on the easement is prohibited as it is unreasonably obstructive to the servient estate.
PRESCRIPTIVE EASEMENT
As an alternative position, the plaintiff claims that an easement that allows parking has been created by prescription.
“The requirements of adverse possession apply to a claim of an easement obtained by prescription and must be established by clear and convincing evidence. A party seeking to obtain title by adverse possession must prove by clear and convincing evidence that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years. Adverse possession is disfavored as a means of gaining title to land, all elements of an adverse possession claim must be proved by clear and convincing evidence. Similarly, “[a]n easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period” ( CSC Acquisition–NY, Inc. v. 404 County Road 39 A, Inc., 2010 N.Y. Slip Op 05130 [2d 2012]internal citations omitted).
An easement created by grant may be extinguished by adverse possession when certain requirements have been met (Spiegel v. Ferraro, 73 N.Y.2d 622 [1989] ). Plaintiff however does not claim that he has adversely possessed the land where the easement is located but rather that the easement by grant should be converted to an easement by prescription and that the new easement obtained by prescription permit plaintiff to park.
The party asserting a prescriptive easement will generally benefit from a presumption of adverse if the party establishes that the use was “open and notorious” However, the presumption will not arise, absent other proof, in situations where the way is kept open and is used by the owner for his or her own purposes and use by the dominant estate (Sewall v. Fitz Gibbon, 233 A.D. 70 [3d 1931] ). Additionally, in situations where the user and landowner are part of a group of neighbors, the party asserting a prescriptive easement is not entitled to the presumption of hostile use arising from open and continuous use. Rather the user must present facts to support the conclusion that the use was under a claim of right and adverse the interests of the landowner (Amalgamated Dwellings, Inc. v. Hillman Housing Corp., 33 AD3d 364 [1d 2006].
Lastly, the existence of an easement by prescription is not to be found lightly, particularly in metropolitan cities where old buildings must make way for newer ones to meet the expanding needs of the people (Merriam v. 352 West 42nd St. Corp., 15 Misc.2d 1023 [Sup 1959] ). An easement by prescription is not necessarily perpetual or of indefinite duration. The easement may terminate when the need for which the parties intended to create it ends ( Id .). The rights of the easement acquired by prescription will be commensurate with the right enjoyed ( CSC Acquisition–NY, Inc., 2010 N.Y. Slip Op 05130 [2d 2012] ).
Plaintiff has failed to establish the requisite factors of an easement by prescription. The testimony establishes that the owner and the user were part of a group of neighbors and that the owner of the servient estate continued to use the easement during the requisite period of time. It is also undisputed that the plaintiff was the beneficiary of a easement by grant and therefore the use of the easement was expressly permitted. Furthermore, plaintiff has failed to establish that such use was adverse to the servient estate for the requisite time period. The dominant estate and their predecessors testified that they had been able to navigate around the vehicles parked on the easement, albeit with difficulty. (see e.g. McGinley v. Postel, 37 AD3d 783 [2d 2007].)
Where the servient estate had removed and maneuvered around obstructions thereby rebutting the claim of adversity.
The crux of plaintiff's testimony to support an easement by prescription was that plaintiff has been parking on the easement since 1987, with minor incident. There was no testimony to establish that there had been a revocation of the express grant. As the plaintiff had express permission to utilize the easement, the use thereon could not have simultaneously been permitted and hostile. This is insufficient to establish the requisite factors of an easement by prescription.
CONCLUSION
The language of the easement is clear and unambiguous. While the grant is broad there is limiting language that requires the use of the easement not to interfere or unnecessarily obstruct the servient estate. Therefore, the plaintiff may not park in Zone “A” or “B” as defined in the aforementioned stipulation dated July 11, 2011, as such actions interfere with and unnecessarily obstruct defendant's use of the easement.
Furthermore, the plaintiff has failed to establish that the easement by grant should be converted to an easement by prescription. Plaintiff's utilization of the easement with the permission of the grantor over the requisite period of time is insufficient to find an easement by prescription. All other issues and claims set forth in the parties pleadings, including the demand for monetary damages are disposed of by the stipulation of the parties.
The Court hereby declares that the plaintiff, its tenants and assigns are prohibited from parking on the easement.