Under New York law, an affirmative covenant runs with the land if the grantor and grantee intended it to run with the land and if the covenant touches and concerns the land.See Restatement § 2.1 cmt. a (noting "modern recognition that running covenants are interests in land"); Feigen v. Green Harbour Beach Club, Inc., 204 N.Y.S.2d 381, 389 (Supr. Ct. 1960) ("Current decisions are framed in terms of such restrictions being easements or interests in land..."). See Neponsit Prop. Owners' Ass'n v. Emigrant Indus. Sav. Bank, 278 N.Y. 248 (1939); Nicholson v. 300 Broadway Realty Corp., 7 N.Y.2d 240 (1959).
An easement by representation may be established by extrinsic evidence notwithstanding a general merger clause and the parol evidence rule, unless in view of the surrounding circumstances, the agreement was one the parties would ordinarily be expected to embody in the writing. ( Smith v. Community Synagogue, 309 N.Y. 733; Lemkin v. Gulde, 16 Misc.2d 1003, affd. 8 A.D.2d 944; Feigen v. Green Harbour Beach Club, 25 Misc.2d 101; cf. Woodmere Park Assn. v. Cedarpoint Realty Co., 279 App. Div. 672.) Mr. Justice Christ's decision in Lemkin v. Gulde ( supra) establishes that the restriction claimed herein was not such an agreement, and while that decision was on motion for summary judgment, nothing developed by the evidence furnishes a basis for altering that conclusion." It was further said of the easement which Lemkin sought to enforce (p. 149): "Such being the case, plaintiff has, as an incident of his lease of the suite and notwithstanding the absence from the lease of the word `appurtenances' ( Kingsway Realty Mtge. Corp. v. Kingsway Repair Corp., 223 App. Div. 281, 284; Bauer v. Schwartz, 122 Misc. 630, affd.
ismissed for the reason that all parties concerned had not been joined. However, it is felt that these do not apply here: Manhattan Stor. Warehouse Co. v. Movers Warehousemen's Assn. of Greater N.Y. ( 289 N.Y. 82) (Attorney-General not a party, and an agreement was to be declared lawful or not; the Attorney-General then could not be bound by any such determination of legality); Wood v. City of Salamanca, 289 N.Y. 279 (nonparty to be directly affected by another's action to declare the constitutionality of a legislative enactment for its benefit); Terner v. City of Peekskill (124 N.Y.S.2d 24) (action to declare invalidity of zoning ordinance amendment as to three lots, brought by a "neighbor" and without any of those three lot owners joined as parties); Brechner v. Incorporated Vil. of Lake Success ( 23 Misc.2d 159) (again, nonparties are the total of the owners of the directly affected parcels); Matter of Leventhal v. Michaelis ( 29 Misc.2d 831); Justino v. Fassi ( 15 A.D.2d 676) ; Feigen v. Green Harbour Beach Club ( 25 Misc.2d 101); Nelkin v. Town of Oyster Bay ( 14 Misc.2d 764); Ponemon v. Incorporated Vil. of East Hills ( 32 Misc.2d 454) (representative action). Although these cases, and many others, recite the necessity for the presence of all parties to the controversy, their negative aspects are worthy of consideration.
The present case is, in my opinion, easily distinguishable from the facts which controlled the decisions in the cases cited by the plaintiffs. ( Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N.Y. 242, 250; Lyons Holding Corp. v. Home Title Ins. Co., 250 App. Div. 640, 641; Deepdale Cleaners v. Friedman, 16 Misc.2d 716, 722; Feigen v. Green Harbour Beach Club, 25 Misc.2d 101, 113; Corning v. Lehigh Val. R.R. Co., 21 Misc.2d 706, 707.) This latter case was reversed ( 14 A.D.2d 156) and while the facts in that case revolved around an actual exception in the deed of conveyance forming the chain of title, nevertheless Justice HALPERN observed (p. 166) that even without the exception in the deed, there would have been constructive notice in any event by the obvious existence of the railroad right of way across the premises.
An easement by representation may be established by extrinsic evidence notwithstanding a general merger clause and the parol evidence rule, unless in view of the surrounding circumstances, the agreement was one the parties would ordinarily be expected to embody in the writing. ( Smith v. Community Synagogue, 309 N.Y. 733; Lemkin v. Gulde, 16 Misc.2d 1003, affd. 8 A.D.2d 944; Feigen v. Green Harbour Beach Club, 25 Misc.2d 101; cf. Woodmere Park Assn. v. Cedarpoint Realty Co., 279 App. Div. 672. ) Mr. Justice CHRIST'S decision in Lemkin v. Gulde ( supra) establishes that the restriction claimed herein was not such an agreement, and while that decision was on motion for summary judgment, nothing developed by the evidence furnishes a basis for altering that conclusion. The court finds that it was represented by defendant corporation by the newspaper advertisement quoted above and by oral representation to Dr. Lemkin that the area in front of the building would be maintained as a park-like or open area. Defendant points to Dr. Lemkin's testimony that the representations included statements that the old house on the area would be torn down and benches installed, neither of which has been done, as affecting his credibility.