Opinion
005902/2006.
Decided June 9, 2009.
In this battle over abutting commercial property each side has contended that it has an easement or ownership over seven feet of property beyond their common property line (the disputed area). More specifically, plaintiff, Air Stream Corp., contends that it owns, by adverse possession, the disputed area (first cause of action), or, in the alternative, that it has a prescriptive easement over the disputed area (second cause of action), while defendant contends such use by plaintiff was "permissive" thus defeating adverse possession or a prescriptive easement.
The defendant, 3300 Lawson Corp., ("Lawson"), contends it acquired an easement over Air Stream's property by an express grant (third counterclaim). Plaintiff argues that Lawson never acquired such an easement by grant or any other method (third cause of action). However, even if the defendant does or did acquire an easement over plaintiff's property, plaintiff claims it was extinguished by Air Stream's adverse possession of the alleged easement area (fourth cause of action). Defendant obviously disagreed.
HISTORY OF PROPERTY
Air Stream acquired its property by deed dated February 24, 1993 from Bernard Grandis ("Grandis") ("Grandis Deed:) (Exhibit 4).
Grandis acquired the Air Stream Premises by deed from Union dated December 29, 1980 (Exhibit 3) ("Union Deed For Air Stream's Premises").
Union acquired the Air Stream Premises by a deed from The Metal Bank of America, Inc. ("Metal Deed") dated January 19, 1970 ("Metal Deed") (Exhibit 1). The Metal Deed makes no reference to any easement.
The Air Stream Premises are improved by a warehouse, loading platforms and several attached loading docks. Four loading docks are located in the area to the north of Air Stream's building which is south of Lawson's building.
A 100 foot common-boundary line extends in an east-west direction across the driveway and loading lock area, and essentially divides what is, from south to north, the third loading dock. The first two of the four loading docks located to the north of Air Stream's building are wholly on the Air Stream Premises. Continuing northerly, the third loading dock is partially located on the Air Stream Premises. Approximately seven feet of the third loading dock is located within the described boundaries of the Lawson Premises. The fourth loading dock is wholly located on the Lawson Premises, and is adjacent to Lawson's building.
There is no reference to any easement over any portion of the Air Stream Premises in any of the deeds in Lawson's chain of title (Exhibit 10, 9, 8 and 7).
The Union Deed to Grandis for what became the Air Stream Premises states:
Reserving to the Grantor herein, its successors and assigns, for use in conjunction with other lands of the Grantor abutting the within premises to the north, an easement for ingress and egress over a parcel of land, and with the loading dock presently located thereon. [There then follows a metes and bounds description of the land.] (Exhibit 3).
Thus, the Union Deed for Air Stream's Premises contains a reservation of rights in Union's favor for it and its successors use in connection with its adjacent property; i.e., the Lawson Premises.
The use of the "easement" is expressly limited to ingress and egress and fails to use any other language for any other purpose, like loading and unloading or parking (Exhibits 3 and 4).
Although denoted as an "easement", there are no words of conveyance such as "grant" or "convey" that are normally necessary to create a permanent right that runs with the land as opposed to an easement in gross, a temporary license or a personal right (Exhibits 3 and 4).
At the end of the trial, Lawson's motion to amend its pleading to conform to the proof was granted by the court (Tr. 1632-1633). Throughout pre-trial proceedings and the entire trial, Lawson based its alleged entitlement to an easement by express grant on it being created in a deed from Bernard Grandis ("Grandis") to Air Stream (the "Grandis Deed") (Exhibit 4). Lawson included the Grandis Deed as an Exhibit in its Trial Book (Exhibit H). Lawson testified that its alleged easement was based upon the Grandis Deed (Tr. 1358-1359). Only after hearing all of the evidence did Lawson seek to amend its pleading to claim an easement by express grant based upon a different deed; one from the Union Corporation ("Union") to Grandis ("Union Deed"). The Union Deed is conspicuously absent from Lawson's Trial Book. Plaintiff argues that Lawson cannot prevail based upon the Grandis Deed, because of the stranger-to-the-deed rule. Lawson knew these facts before this action was brought and offered no reason or excuse for its change of theory of the case. Plaintiff further argues Lawson's gross laches prejudiced and surprised Air Stream, and that the Union Deed should not have been substituted for the Grandis Deed as the foundation for Lawson's claim. The court disagrees and abides by its ruling at trial.
Union owned property now known as the Lawson Premises from February 27, 1975 to August 31, 1982 (Exhibits 7 and 8), and owned the Air Stream Premises from January 19, 1970 to December 29, 1980 (Exhibits 1 and 3). By the time the Air Stream Premises were conveyed by Grandis to Air Stream on February 24, 1993 (Exhibit 4), Union had long before — August 31, 1982 — conveyed its interest in the Lawson Premises (Exhibit 8). Union did not grant, transfer or convey any of Union's rights or any easement over the Air Stream Premises when it gave its Deed for the Lawson Premises to Spadafina (Exhibit 8) (1982).
Immediately following the previously quoted language from the Union Deed (and after the metes and bounds description), the Grandis Deed to Air Stream contains the phrase "For conveyancing only, if intended to be conveyed." This also evidences no intention to convey an easement that permanently burdened the Air Stream Premises and permanently benefitted the Lawson Premises. In fact, the reader of said deed (Exhibit 4) cannot fairly say what that phrase means, and whether it was intended to refer to the previous paragraphs or to the following sentence that refers to the title to the center of the street (common to most deeds). Grandis never owned the Lawson Premises (Exhibits 7, 8, 9 and 10) and could not — under the stranger-to-the-deed rule — convey any easement to said premises over its own premises. "[A] grantor cannot create an easement benefitting land not owned by the grantor." Bungalow Preservation Association of Far Rockaway v. Oceanview Associates, LLC, 301 AD2d 488 (2d Dept. 2003); Estate of Thompson v. Wade, 69 NY2d 570 (1987).
Before purchasing the Air Stream Premises, Thomas Fitzsimmons went to the Air Stream Premises a number of times and had several meetings with Grandis, the then owner, in order to ascertain if the loading area could accommodate Air Stream's business (Tr. 280-289). Thomas Fitzsimmons was the President of Air Stream at that time and handled the acquisition of the property.
With respect to the first, second and third loading docks, Grandis represented to Thomas Fitzsimmons "[t]hat they were part of the building, they came with the building, those three platforms belonged to the building" (Tr. 299).
Those three loading docks all had Kelly Lifts. The fourth loading dock was visibly different. Instead of a Kelly Lift there was merely a cement platform that a truck could not back directly up on, a staircase, and some trees and other overgrowth (Tr. 86, 90-91, 186, 300, 641, 906).
Grandis informed Thomas Fitzsimmons that the Lawson Premises (not yet owned by our defendant) had a seven foot easement to come onto the Air Stream Premises (Tr. 302), but that " the easement itself was kind of fluffed over to an extent, . . . the building is dormant, it's not used, they don't use it" (emphasis supplied) (Tr. 302). In Exhibit 6A, the Carman-Dunne survey from 1993, which was relied upon by Thomas Fitzsimmons of Air Stream, shows that Air Stream's property had a seven foot easement over the Lawson property, more specifically, the northerly half of the third loading dock. This exhibit was admitted not for its truth (it was wrong), but for the fact that it was what Thomas Fitzsimmons believed when he purchased the property.
As a result of the representations made by Grandis and the Carman-Dunne survey, Air Stream always believed it owned and/or had the legal right to use the Disputed Area. From the time of its purchase in 1993 to date, Air Stream used the Disputed Area because "[i]t was our property. It was our dock" (Tr. 311, 319).
LAWSON'S CHAIN OF TITLE
Lawson has argued to the court that its right to an easement over the Air Stream property is found within its deeds. An easement is an appurtenance and passes under a recital in a deed reading, "with the appurtenances thereto," without specific mention or description. Spencer v. Kilmer, 151 NY 390, 45 N.E. 865 (1897); Schwab v. Whitmore Rauber and Vicinus Co., Inc., 245 A.D. 174, 281 N.Y.S. 30 (4th Dept. 1935); Quinn v. County of Nassau, 33 Misc 2d 701, 215 NYS2d 305 (Sup. Ct., Nassau Co. 1961); Chain Locations of America, Inc. v. Westchester County, 20 Misc 2d 411, 190 NYS2d 12 (Sup. Ct., Westchester Co. 1959) aff'd. 9 AD2d 936, 196 N.Y.S.2D 573 (2d Dept. 1959).
There is no reference to any easement over any portion of the Air Stream Premises in any of the deeds in Lawson's chain of title (Exhibits 10, 9, 8 and 7).
Lawson acquired its property by a deed from Bellingham Corp. ("Bellingham") dated December 28, 1999 (Exhibit 10) (Exhibit G) ("Bellingham Deed"). The Bellingham Deed makes no reference to an easement over the Air Stream Premises (Exhibit 10), but does contain an appurtenance clause.
Bellingham acquired the Lawson Premises by deed from Guy R. Vitacco, Jr., Referee, dated April 21, 1988 (Exhibit 9) ("Vitacco Deed"). Vitacco was the referee in a mortgage foreclosure action against Joseph M. Spadafina ("Spadafina"). The Vitacco Deed (i) refers to no easement over the Air Stream Premises; (ii) contains no appurtenance clause; and (iii) expressly provides that "the parcel is entirely owned by the party of the first part [Vitacco]." (Plaintiff's Exhibit 9). Even if an express easement had been created prior to the Vitacco Deed, it was not conveyed by Vitacco to Bellingham and did not pass as an appurtenance in the absence of an appurtenance clause. Therefore, Bellingham had no easement to convey to Lawson.
Spadafina acquired the Lawson Premises under a deed from Union dated August 31, 1982 (Exhibit 8) ("Union Deed for Lawson's Premises"). The Union Deed for Lawson's Premises makes no reference to any easement (Exhibit 8). Union did not convey any easement or grant any right to Spadafina relating to the use of the most northerly seven feet of the Air Stream Premises. However, it does contain an "appurtenance" clause.
Union acquired the Lawson Premises by a deed dated February 27, 1975 from Comart Realty Corp. ("Comart") (Plaintiff's Exhibit 7) (the "Comart Deed"). The Comart Deed makes no reference to any easement (Exhibit 7) because none existed.
As pointed out above, Lawson also claims an easement under Union's Deed to Grandis (for the Air Stream property) which claimed reservation of rights of ingress and egress to it (Union) and its successors (see above).
It is clear that an easement may be created by a reservation in a deed and would constitute an easement appurtenance which would run with the land. Laera v. Molina, 100 AD2d 615 (2d Dept. 1984).
Plaintiff argues this deed, which does not specifically name Lawson, but goes from Union to Grandis, cannot support Lawson's claim pursuant to the stranger-to-the-deed rule. More specifically, plaintiff complains the court should not have allowed Lawson to amend its pleading which prejudiced and surprised Air Stream. Thus, plaintiff argues the court should reverse its prior ruling, not allow the amendment of the pleading "to conform to the proof", and strike and now allow the substitution of the Union to Grandis Deed for the Grandis to Air Stream Deed. That request is denied. If Air Stream was surprised, it should not have been. The deed was available to all parties pre-trial and the motion was timely made. If plaintiff believed it had been unduly prejudiced, it could have requested an adjournment of the trial to respond to the changed playing field.
The court will address the easement claims of defendant before reaching the adverse possession claim of the plaintiff.
Prior to purchasing its property on Lawson Boulevard, as previously noted, Thomas Fitzsimmons had multiple conversations with the seller, Grandis. Fitzsimmons was concerned about the loading docks availability for his trucks. Normally, out of court statements by Grandis would be inadmissible hearsay. However, in an adverse possession case such statements are admissible, not necessarily for their truth, but for the fact that they were said and to reflect on Thomas Fitzsimmons' state of mind. In other words, what did Thomas Fitzsimmons believe?
Grandis represented to Thomas Fitzsimmons that the first, second and third loading docks (the first being closest to Air Stream's building and then moving north toward the building which was eventually bought by Lawson) "were part of the building, they came with the building, those three platforms belong to the building" (Tr. 299). In actuality, the property line runs through the third loading dock, practically bisecting it. Grandis also informed Fitzsimmons that the Lawson property had an easement to come onto the Air Stream premises, but they never exercise their right. (Tr. 302).
It is clear to the court that an easement of the Lawson property over the Air Stream property was not created by any easement clause or any appurtenance clause in any deed to Lawson or to any of its prior, predecessor grantors, Bellingham Corp., Guy R. Vitacco, Jr. (Referee's deed) (related to Spadafina foreclosure) (no reference to an easement nor is their any appurtenance clause), Union to Spadafina (no reference to an easement), nor the deed from Comart Realty Corp. (February 27, 1975) to Union. When Union conveyed to Spadafina, it was no longer the owner of the abutting property to the south (Air Stream).
The question then becomes whether the deed from Union to Grandis (December 29, 1980), the eventual source of Air Stream's property rights (Grandis to Air Stream), can be viewed or interpreted as reserving to Union's "successors and assigns for use in conjunction with other lands of the grantor abutting the within premises to the north, an easement for ingress and egress over a parcel of land, and with a loading dock presently located thereon" to Lawson. Does Thomas Fitzsimmons' knowledge, not the truth of what was said by Grandis, but that it was said of the northerly property's easement over Air Stream, impact on defendant's alleged easement?
As pointed out above, Union acquired what we will call the Lawson property and the Air Stream property on separate dates. It then conveyed them to separate parties on different dates. The Air Stream property was conveyed to Grandis on December 29, 1980, then reconveyed to Air Stream on February 24, 1993 by Grandis.
The Lawson property was conveyed by Union to Spadafina on August 31, 1982, two years after the conveyance to Grandis of the Air Stream property. The deed to Spadafina did not convey by any reference any of Union's rights over Air Stream's property (the property to the south of Lawson's). Can the Air Stream property, the servient estate in the deed of Union to Grandis (and Grandis to Air Stream), avoid the easement?
Defendant relies on Strnad v. Brudnicki, 200 AD2d 735 (2d Dept. 1994). In Strnad the court stated:
Even if we assume that the easement is not appurtenant and did not pass automatically to the subsequent owners, a person who purchases the servient estate with actual or constructive notice of the easement is estopped from denying the existence of the easement. Here, the defendants' deed contained specific language that their purchase was subject to the right-of-way shown on the filed map. The map clearly shows the right-of-way burdening the defendants' property and, therefore, they cannot now deny the existence of the right-of-way.
Is Strnad applicable to our facts? In Strnad, a 1994 case, the facts reveal a long string of deeds from 1946 forward that contained appurtenance clauses from which the claimant could trace an easement. There is no such history in the instant case. From the Vitacco Deed forward there is no reflection of any right from which defendant Lawson can rest a claim of easement. Furthermore, the 1993 Carmen-Dunne survey does not reflect the easement over Air Stream's property.
The court finds the fact that plaintiff was told by its grantor (Grandis) that the property to the north had some easement of ingress or egress over a portion of its property does not make it so, especially when no mention of such an easement or "appurtenance" was made in the three deeds that preceded Lawson acquiring said northerly property. In fact, Lawson itself was not aware of such an easement, and the evidence shows that no prior northerly neighbor exercised such easement over the Air Stream property, despite that, on occasion, plaintiff's employees did assist tenant/occupants of the northerly property in using loading dock number 3. The court finds no legal nor equitable basis to support an easement of Lawson over Air Stream's property.
FLOW CHART OF TITLE
Comart Realty Corp. — 1975 — The Metal Bank of America, Inc. — 1970
3300 Lawson Boulevard 3400 Lawson Boulevard
To — To
Union — Union Union To Spadafina — 1982 — Union To Grandis — 1980
Spadafina Foreclosure — Grandis To Air Stream — 1993
Vittaco Referee's Deed — 1988
To
Bellingham Corp.
Bellingham To Lawson — 1999
HAS AIR STREAM ESTABLISHED OWNERSHIP OF, OR, IN THE ALTERNATIVE, A PRESCRIPTIVE EASEMENT OVER A SEVEN FOOT AREA ON LAWSON'S SIDE OF THE PARTIES' COMMON BOUNDARY?
In order to obtain title by adverse possession the claimant must establish "by clear and convincing evidence that for a period of 10 years it (1) actually possessed the property in dispute and (2) that their possession was open and notorious, (3) exclusive, (4) continuous, (5) hostile and under a claim of right, and that the disputed parcel was either usually cultivated and improved' or protected by a substantial inclosure'." Goss v. Trombly , 39 AD3d 1128 (3d Dept. 2007).
"Adverse possession must be proven by clear and convincing evidence. Ray v. Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 (1966). Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely.' (RPAPL 521). See also, Belotti v. Bickhardt, 228 NY 296, 302 (1920); see also Van Valkenburgh v. Lutz, 304 NY 95, 99 (1952); Spiegel v. Ferraro, 73 NY2d 622, 624 (1989); Ray v. Beacon Hudson Mtn. Corp., 89 NY2d 159. Here the required period is at least ten years. (See Ray at 159)." Walling v. Przyblo , 7 NY3d 228 , 232 (2006). (Since modified by statute).
Numerous witnesses testified on behalf of Air Stream as to the use and maintenance of the loading docks and driveways that are on the northern end of Air Stream's property. This included the third loading dock (one-half of which is on Lawson's property), and the driveway that runs from in front of said loading dock out to the street (Lawson Boulevard). This included continuously cleaning the area, repairing the docks and lifts as needed, including patching holes and welding the dock area, as well as providing lighting. The court has no doubt that they treated the property as their own.
The defendants have raised objection to the aforementioned diverse requirements needed for adverse possession. Initially, they contend that said possession has not been "exclusive." They point to the fact that when Girardi and Catalanello purchased 3300 Lawson Boulevard they did construction (renovation) work within their premises and needed to use the loading area on their south side. That, due to a pre-existing embankment (concrete) on the south side of their building, they could not back straight in to their dock (dock number 4) so they backed in between dock numbers 3 and 4. The embankment was removed in January 2000, shortly after the purchase of the property. Further, that on other occasions during renovations they put dumpsters on dock number 3 for use in removing debris of renovation. However, they also could, and apparently did, place a dumpster in front of the building directly in front of an overhead door. Girardi also stated that when he was there during the renovation period he saw NAS Antenna, his tenant, use dock number 3 for shipping and receiving. This apparently coincided with the dumpsters being on dock number 3. It is not clear whether a dumpster could be on dock number 3 simultaneously with the dock being used for shipping and receiving, or whether Girardi's memory was faulty. If so, it would not stop Air Stream's use of said dock on a nearly 24/7 basis. Thomas Fitzsimmons agreed that he had seen a tenant use dock number 3. Further, he personally had never told the tenant he could not use dock number 3.
"Exclusivity" is a requirement of adverse possession. However, "exclusive", argues the plaintiff, does not necessarily mean "exclusive use", but rather "exclusive possession" which means exclusive dominion and not necessarily exclusive use. See, e.g., Robinson v. Robinson , 34 AD3d 975 (3d Dept. 2006) (Only seasonal use by plaintiff did not preclude claim of continuous and uninterrupted use, nor did occasional use by family members and neighbors that did not interfere with plaintiff's activities during the statutory period render plaintiff's use non-exclusive.)
Defendant ridicules plaintiff's interpretation of exclusivity calling it absurd, stating: "It is axiomatic that the exclusivity required for adverse possession means exclusive dominion to the exclusion of all others." Citing Perry v. Young Israel of New Rochelle, 33 AD3d 704 (2d Dept. 2006). Perry concluded that Young Israel neither cultivated nor improved the property in question nor "enclosed the real property in order to exercise dominion over it." Citing to Casini v. Sea Gate Association, 262 AD2d 593 (2d Dept. 1999). Perry never uses the words of defense counsel "exclusive dominion to the exclusion of others" nor does Casini. Neither the facts nor the law of either Perry or Casini support defendant's position.
Adverse possession cases are very fact sensitive. One cannot lightly superimpose the findings of one case onto another when the facts are dramatically, or even marginally, different. The fact that for a minuscule period of time, proximate to when defendant bought the Lawson property, it used the third loading dock for a dumpster for the removal of construction debris, does not mean, in the opinion of the court, that Air Stream did not continue to maintain exclusive dominion over the disputed property. Furthermore, from the testimony, the use by NAS (Lawson's first tenant) is weak, if it is to be believed at all (no representative of NAS testified at trial). Lawson's second tenant, New ERA, did not move in until 2004 after the ten year statutory period. Even then it would appear that New ERA's use of dock number 3 was with permission and even assistance of an Air Stream employee.
The court finds that the plaintiff has proven "exclusivity" by clear and convincing evidence. Even if this were not so, the Plaintiff has certainly established entitlement to a prescriptive easement, for which exclusivity is not an essential issue. Gorman v. Hess, 301 AD2d 683 (3d Dept. 2003).
WAS AIR STREAM'S USE OF THE DISPUTED STRIP HOSTILE AND UNDER A CLAIM OF RIGHT?
The adverse possessor must act under a claim of right. Chion v. Radziul, 2009 WL 1478482 (2d Dept. 2009), citing Walling v. Przybylo, 7 NY3d 228 (2006). By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors (citation omitted)." Przybylo at 232.
It is clear to the court that Air Stream's trucks used loading dock number 3 constantly for a period of more than ten years. It was not relevant whether Air Stream actually knew of Lawson's interest in that property. This does not mean that "use" was continuous, for every second of every day, but it was constant. Air Stream's seven day a week use of the loading docks to ship food out and receive food was proven by clear and convincing evidence to the satisfaction of the court.
Plaintiff argues this was equivalent to having put up a fence around the disputed area and gave notice of Air Stream's adverse possession and control of the disputed area. Air Stream points to Exhibit 14, a letter from Lawson's lawyer that Air Stream "defied directions from the current and prior owner to cease" its use of the disputed area. This exhibit (number 14) was not placed in evidence and cannot be considered by the court The Court of Appeals ( Monnot v. Murphy, 207 NY 240, 245 (1913)noted that what is important is the acquiescence of the actual owner in the exercise of "an obvious adverse or hostile ownership" during the statutory period. If the adverse possessor (Air Stream) used and improved the land as an owner of similar property would do so, said possession without anything more is presumed "hostile" and under a claim of right. Smith v. Egan, 225 A.D. 586 (4th Dept. 1929).
Air Stream argues that the required "hostility" does not require the showing of enmity or specific acts of hostility, and, in fact, even if Air Stream believed the entirety of loading dock number 3 to be theirs, (Thomas Fitzsimmons believed it was, though it was not), that would not defeat hostile use. Katona v. Low, 226 AD2d 433 (2d Dept. 1996). "All that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner's rights" ( Katona v. Low, supra) (emphasis supplied), and that occurred here. "In any event if the use is open, notorious and continuous for the full 10-year statutory period, a presumption of hostility arises." Kotona, supra . Lawson disagrees.
Lawson contends that not only is the record devoid of any evidence to suggest that the use of the disputed strip was hostile, but, in fact, the "credible evidence" indicates use was permissive and that Air Stream took no steps which would put a reasonable owner on notice of any intention to adversely occupy the area. Air Stream never fenced off the loading dock nor challenged Lawson's use of it. In any event, Lawson argues that "hostility" is negated as the result of a neighborly accommodation. Duckworth v. Ning Fun Chiu , 33 AD3d 583 , 584 (2d Dept. 2006). In this prescriptive easement case (not adverse possession), the court found a neighborly accommodation by the defendant in allowing plaintiff to use a three foot portion of sidewalk that belonged to defendant. It is interesting to note that each of the cases cited in Duckworth were also cases of prescriptive easement. The court accepts Lawson's argument that a neighborly accommodation does not require a close personal relationship.
Defendant points to the testimony of Catalanello as to his discussion with Thomas Fitzsimmons shortly after they purchased the Lawson property in January-February 2000 when Fitzsimmons had indicated an interest in part of the Lawson property.
Q.So what did you tell him?
A.I told him that I, you know, I wouldn't take him in as a partner, and he could use the dock space as long as he doesn't give me a headache with the tenant, with any tenant, and keep it clean.
Q.And what, if anything, did he say to you in response?
A.Nothing. He just said thank you, and we went on with our lives.
(Transcript, p. 943, ln. 23 — p. 944, ln. 8).
It is this testimony upon which Lawson relies in showing permissive use on behalf of Lawson toward Air Stream. Yet, there is no direct reference to dock number 3.
Air Stream argues that Catalanello's testimony was incredible and inconsistent with prior testimony and exhibits. Air Stream points to the fact that Lawson complained about damage to its building due to Air Stream's use and the complaints of Lawson's tenants. It appears, and not surprisingly, that each party has a different recollection of these conversations or if they even took place. Neither side has the edge when it comes to credibility in this case, added to the fact that their memory of eight year old conversations must be factored in by the court. It is also not clear whether Catalanello was referring to generally dock number 4 on Lawson's property or to dock number 3, rather than number 4, as the defense would like the court to infer. When one side or the other quotes from the record they have a habit of being artistically selective in their excerpts. Defense counsel used leading questions as to loading dock number 3, but the witness made no direct reference to it. In fact, Catalanello, despite being asked about dock number 3, refers to complaints from the tenant about broken boxes of fruit and vegetables (Tr. 1051-1052), but no reference to them being on dock number 3 or permissive use of dock number 3 by plaintiff due to the largese of defendants. (See Tr. 1042-1043 — conversations with Thomas Fitzsimmons on the loading dock). Other testimony (Tr. 1044-1047) related to damage to the Lawson building.
When the court inquired of Catalanello (Tr. 1053) about what he had said to Thomas Fitzsimmons, his response was about hitting the building and how the tenant would sit by the window, overlooking the dock.
Mr. Catalanello never knew of any easements on the land when he purchase it in 1999. (Tr. 1164). He based his conclusion that Lawson had an easement over Air Stream on what was in the deed from Grandis to Air Stream. (Tr. 1359). There is no indication on how he came to the knowledge of the language in the deed. When questioned on the issue of blacktopping the area south of his building (Tr. 1177), he believed that he had blacktopped around a drain area (an area clearly on Air Stream's property — an area that they did not blacktop. When asked about conversations relating to the easement, Mr. Catalanello responded that they had hit the garage door and the cops came. (Tr. 1211).
[He first learned about a claimed easement by Air Stream from Thomas Fitzsimmons. (Tr. 1213-1214). He believed Lawson has an easement.]
When asked what did he say to Thomas Fitzsimmons with regard to loading dock number 3, he responded that he told him he could not come on to my property and do damage. (Tr. 1337). He (Thomas Fitzsimmons) said he would correct it and tell his guys and Bobby and we were back to square one. He said the problem was temporarily corrected.
The key here is that this testimony by Catalanello, as well as much of the testimony relating to the use of loading dock area by Air Stream, refers to clutter, litter and damage on and to Lawson's property, and this does not mean dock number 3. In fact, there was no damage to loading dock 3.
Mr. Girardi's testimony, which came after Catalanello's, also attempted to relate to the use of dock number 3. He described the use of dock number 3 during the renovation that occurred inside the south end of the building shortly after it was purchase. The placement of dumpsters on the loading dock and trucks that pulled in to remove the rubbish. (Tr. 1388). He also spoke to Thomas Fitzsimmons (Tr. 1394) about Air Stream damaging his building.
Grandis testified as to what the court will call his understanding of the blacktop issue. The more he spoke the more confused he sounded in trying to explain the paving issue, what was paved and when. (Tr. 1407, 1410-1412). He eventually testified (Tr. 1522) that they paved at least the area in front of docks 3 and 4.
As to the issue of permissive use, Girardi testified he gave permission to use dock 3 to Thomas Fitzsimmons. "You can use it as long as you don't damage my building and if you're good to my tenant." (Tr. 1420). And that the only reason they did not take action against Air Stream was due to family accommodation. (Tr. 1421-1422).
He did agree, on the subject of an easement, that he never discussed, pre-purchase, with Thomas Fitzsimmons or anyone else where the property line was on dock number 3. (Tr. 1493 and 1499). He also agreed that he did not buy the property with either the knowledge or expectation of an easement over Air Stream's property.
HAS THE PLAINTIFF PROVED ENTITLEMENT TO TITLE BY ADVERSE POSSESSION OF THAT PORTION OF LOADING DOCK 3 ON LAWSON'S PROPERTY?
Lawson argues that the use of loading dock 3 was permissive. Any claim of permissive use by Air Stream prior to Lawson's purchase is rejected. During the period following Lawson's purchase, 1999 to 2006, Lawson contends it permitted Air Stream's use as a friendly accommodation. At practically the same time, over a period of years, Lawson complained to Air Stream that its building and overhead doors had been damaged by Air Stream employees. It also complained about the wooden palettes left by Air Stream's employees on Lawson's loading dock.
Plaintiff argues that the ongoing complaints are shown in Exhibits 11, 12, 13 and 14. However, Exhibit 11 (letter of September 19, 2000) does not specifically refer to loading dock number 3, but merely to Lawson's own property and the complaint of Lawson's tenant. It does not show hostile use of loading dock number 3, nor does it show that Lawson requested that Air Stream "stop" the use of the disputed area as claimed by plaintiff in its closing brief. No inference can be drawn from Exhibit 11 that it referred to the disputed area. Exhibit 12 (letter of May 14, 2002) again does not complain about loading dock number 3, but rather the inappropriate acts of Air Stream's employees relating to Lawson's tenant "Abe," who occupied the most southerly portion of Lawson's building and used its loading dock (number 4). Again, no reference to the disputed area by description or clear inference. Exhibit 13 (letter of March 22, 2006) tells Air Stream that Lawson is putting metal posts on their southern property line. This post dates the ten year period and has no relevance to a disputed claim of title. Exhibit 14 is not in evidence and will not be considered by the court.
Mr. Catalanello testified to the problem caused by his neighbor, Air Stream. He only visited the premises when his tenant complained about Air Stream.
Literally, these letters are worthless as to any claim by either party as to the disputed area. They do not support a claim of permissive use of the disputed area by defendant nor a claim of hostile use of the disputed area by the plaintiff. In fact, there is no evidence that anyone, be it Lawson or its predecessors, gave permission to Air Stream to use the disputed area. There is no evidence that either of Lawson's owners, neither Girardi nor Catalanello, gave permission to Fitzsimmons/Air Stream to use Lawson's side of the third loading dock.
The personal relationship claimed by Girardi with Fitzsimmons, which forms the basis of the claim of a neighborly accommodation, or permissive use, is rejected by the court. Whatever family relationship that existed with Thomas or Robert Fitzsimmons and Girardi was between the daughter/sister of Thomas and Robert or Robert's father-in-law. They were acquaintances in local, social and political circles in Oyster Bay Cove, and also through Girardi's connection to Fitzsimmons' daughter. If there was any accommodation it was not making a more formal complaint about Air Stream's alleged damage to Lawson's building or property, not the allowance of Air Stream to use Lawson's half of dock number 3.
A claim of friendship is belied by a series of incidents in 2002, 2003 and 2006 where the parties openly argued over the problems that existed at the property.
CONCLUSION
There is no argument as far as the court is concerned that Air Stream has proven by clear and convincing evidence that it used all of loading dock number 3, which included seven feet of defendant's property for over ten years from the time it purchased the property. That said use was actual and open and notorious.
In the opinion of the court, all three loading docks, which would include the seven foot disputed area north of plaintiff's property line, were used and used continuously by plaintiff from the time they acquired the property in 1993 until defendant acquired the property to the north of Air Stream, the Lawson property in 1999, and then for a period of at least seven years thereafter. They, of course, did not "cultivate" the land, the test for open land or farm property, but they did openly use it and repair it as one would expect it to be used (loading and unloading trucks and repair). The type of acts necessary to constitute "cultivation and improvement" will vary depending on the situation of the property and the use to which it is to be put and must consist of acts that are usual to that of similar lands. See Goss v. Trombly , 39 AD3d 1128 (3d Dept. 2007).
Defendant produced no testimony relating to the repair, upkeep or cleaning of the loading docks. All of Lawson's testimony referred to the issue of the maintenance of this area by paving or blacktopping it. This was hotly contested during trial. Lawson argued that its contractor blacktopped all of its property as well as a portion of Air Stream's property. Air Stream claimed otherwise. The problem was that Air Stream also used the same contractor for whatever work it did on the driveway area.
Air Stream countered Lawson's evidence of blacktopping by showing or attempting to show mathematically and circumstantially that Lawson's proof did not show work on Air Stream's property, but actually was only for a small portion of its own property on its south side, along with the blacktopping of grassy areas found in front (east side) of its property. The testimony of the blacktop contractor, Mr. Cari, is less than convincing and more than confusing as to the work he did, when he did it, and for whom.
It is clear to the court that Air Stream's use of the three loading docks, including the seven foot section of dock number 3 that was on Lawson's property, was open, notorious, exclusive and continuous for more than the required period (ten years), and this has been proven by clear and convincing evidence. "The element of hostility will be presumed if the use is open, notorious and continuous for the full 10-year statutory period,' and may be found even where the plaintiff possessed the property through inadvertence or mistake." (Citations omitted). Goss v. Trombly, supra, at p. 1129. Therefore, the court also finds that Air Stream's use of the property was "hostile" for the requisite 10-year period.
The court concludes that the plaintiff has established its claim of title by clear and convincing evidence by adverse possession to the southerly 7 foot segment of the defendant's property, running from defendant's westerly property line along its southern boundary to the eastern boundary line. If the court was not to have made this finding, it would have found that the plaintiff is entitled to a prescriptive easement over that same portion of the dock and driveway on the defendant's property. Plaintiff is directed to submit revised Deeds to its property and that of Lawson reflecting the decision of this court along with a Judgment, both on Notice to defendant.
Settle Judgment on Notice.