Finster Inc. v. Albin

4 Citing cases

  1. Mentiply v. Foster

    201 A.D.3d 1051 (N.Y. App. Div. 2022)   Cited 9 times

    ng 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" ( Real Property Law § 240[3] ; seeCannon v. Hampton, 198 A.D.3d 1230, 1231, 157 N.Y.S.3d 162 [2021] ; Margetin v. Jewett, 78 A.D.3d 1486, 1488, 912 N.Y.S.2d 356 [2010] ). The construction of a deed is generally a question of law for the courts to decide (seeLewis v. Young, 92 N.Y.2d 443, 449, 682 N.Y.S.2d 657, 705 N.E.2d 649 [1998] ; Jankoski v. Lake Forest Acres Homeowners, Inc., 107 A.D.3d 1367, 1368, 968 N.Y.S.2d 240 [2013] ; Hush v. Taylor, 84 A.D.3d 1532, 1533, 923 N.Y.S.2d 284 [2011] ), and, "[i]n construing [a] deed, all other deeds to which it refers, and which refer to each other[,] are required to be considered" ( Riegel v. Larnard, 178 App.Div. 355, 356, 164 N.Y.S. 763 [1917] ; seeLoch Sheldrake Assoc. v. Evans, 306 N.Y. 297, 305, 118 N.E.2d 444 [1954] ; Elm Lansing Realty Corp. v. Knapp, 192 A.D.3d 1348, 1350, 145 N.Y.S.3d 160 [2021] ; Finster Inc. v. Albin, 152 A.D.3d 922, 924–925, 58 N.Y.S.3d 745 [2017] ). Defendants’ 1994 and 1999 deeds provide that the conveyances were "subject to a footpath as it now stands and is now used for purpose of ingress and egress to lands now or formerly of George Bourgeois," as well as "any and all covenants, conditions, restrictions, easements and agreements of record, if any, contained in the chain of title affecting [the] premises."

  2. Maicus v. Maicus

    156 A.D.3d 1019 (N.Y. App. Div. 2017)   Cited 2 times

    The 1954 deed describes this location as "extending from the road located near the house northerly to the property herein sold." In our view, the location of the right-of-way cannot be clearly discerned from this language and, thus, it is proper to look to extrinsic evidence to determine the location (see Finster Inc. v. Albin, 152 A.D.3d 922, 924–925, 58 N.Y.S.3d 745 [2017] ; Leaman v. McNamee, 58 A.D.3d 918, 920, 870 N.Y.S.2d 612 [2009] ). After considering defendants' extrinsic evidence, including the historical aerial photographs, in conjunction with the description of the right-of-way in the 1954 deed, we agree with Supreme Court that defendants established, as a matter of law, that the two branch dirt roads start at the end of the road situated near the front of plaintiffs' house and extend to defendants' property as shown in the 1947 and 1964 aerial photographs.

  3. Mentiply v. Foster

    2022 N.Y. Slip Op. 82 (N.Y. Sup. Ct. 2022)

    The construction of a deed is generally a question of law for the courts to decide (see Lewis v Young, 92 N.Y.2d 443, 449 [1998]; Jankoski v Lake Forest Acres Homeowners, Inc., 107 A.D.3d 1367, 1368 [2013]; Hush v Taylor, 84 A.D.3d 1532, 1533 [2011]), and, "[i]n construing [a] deed, all other deeds to which it refers, and which refer to each other[, ] are required to be considered" (Riegel v Larnard, 178 A.D. 355, 356 [1917]; see Loch Sheldrake Assoc. v Evans, 306 NY 297, 305 [1954]; Elm Lansing Realty Corp. v Knapp, 192 A.D.3d 1348, 1350 [2021]; Finster Inc. v Albin, 152 A.D.3d 922, 924-925 [2017]). Defendants' 1994 and 1999 deeds provide that the conveyances were "subject to a footpath as it now stands and is now used for purpose of ingress and egress to lands now or formerly of George Bourgeois," as well as "any and all covenants, conditions, restrictions, easements and agreements of record, if any, contained in the chain of title affecting [the] premises."

  4. Kheel v. Molinari

    165 A.D.3d 1576 (N.Y. App. Div. 2018)   Cited 5 times

    The record also evinces factual questions regarding whether it is necessary for defendant to use the driveway to access the septic tank, which is wholly located on plaintiff's property. Given these factual issues, we find that Supreme Court properly determined that there were questions of fact precluding summary judgment on defendant's claim for an easement by necessity (seeFinster Inc. v. Albin, 152 A.D.3d 922, 925, 58 N.Y.S.3d 745 [2017] ); Freeman v. Walther, 110 A.D.3d 1312, 1316, 974 N.Y.S.2d 603 [2013] ). McCarthy, J.P., Devine, Mulvey and Pritzker, JJ., concur.