Opinion
No. 55745–2012.
07-03-2014
Eileen GEASOR, Tina Telesco and Timothy Telesco, Plaintiffs, v. William GERETY & Drayton Gerety, Brian Salerno, The Town of Rye, The Village of Port Chester and The Village of Port Chester Zoning Board of Appeals, Defendants.
Phillip A. Grimaldi, Jr., Esq., Hawthorne, for Plaintiffs. Delbello Donnellan Weingarten Wise & Weiderkehr, LLP, White Plains, for Defendants–Gerety. Pierro & Kamensky, Port Chester, for Defendant–Salerno. Paul Noto, Esq., Mamaroneck, for Defendant–Town of Rye 650 Halstead Avenue. Anthony Cerreto, Esq., Port Chester, for Defendant–Village of Port Chester.
Phillip A. Grimaldi, Jr., Esq., Hawthorne, for Plaintiffs.
Delbello Donnellan Weingarten Wise & Weiderkehr, LLP, White Plains, for Defendants–Gerety.
Pierro & Kamensky, Port Chester, for Defendant–Salerno.
Paul Noto, Esq., Mamaroneck, for Defendant–Town of Rye 650 Halstead Avenue.
Anthony Cerreto, Esq., Port Chester, for Defendant–Village of Port Chester.
Opinion
JOAN B. LEFKOWITZ, J.
The following papers were read on the E-filed motion by the defendants, WILLIAM GERETY and DRAYTON GERETY, for an order granting summary judgment dismissing so much of the complaint as asserts a cause of action against them; and (2) the E-filed cross-motion by the plaintiffs for an order granting summary judgment declaring that plaintiffs have an easement by implication over land purportedly owned by the defendants WILLIAM GERETY and DRAYTON GERETY.
Notice of Motion, Affirmation, Affidavit (Exhibits A–DD)
Memorandum of Law
Notice of Cross–Motion, Affirmation, Affidavit (Exhibits A–HHH)
Memorandum of Law
Affidavit (Defendant (Exhibits A–B)
Memorandum of Law (Defendant)
Affirmation (Exhibit A) (Plaintiff)
Upon reading the foregoing papers it is
ORDERED the motion is denied; and it is further
ORDERED the cross-motion is granted to the extent that plaintiffs are awarded judgment declaring that they have an easement by implication over the parcel of land depicted as an unnumbered lot lying between Lot No. 47 and Lot No. 24 on the subdivision map entitled “Map of Alden Estates, Pilgrim Drive Section,” dated December 16, 1947, and filed in the Office of the Westchester County Clerk as Map No. 6505; and it is further
ORDERED the action against the remaining defendants is severed; and it is further
ORDERED that, because it cannot be determined on the present papers whether this decision and order disposes of all the issues pending against the remaining defendants, the parties to the severed action are directed to appear on August 18, 2014, at 9:30 a.m. in the Settlement Conference Part, Courtroom 1600, Westchester County Supreme Court, 111 Martin Luther King Boulevard, White Plains, New York, prepared to conduct a settlement conference.
Plaintiffs are owners of residential lots in the Village of Port Chester. The defendants, WILLIAM GERETY and DRAYTON GERETY, are the purported owners of a parcel of land located between the lots owned by the plaintiffs (the “disputed parcel”). The GERETY's seek to construct a one-family residence on the disputed parcel. Plaintiffs commenced this action seeking judgment declaring they are the owners of the disputed parcel by adverse possession or that the disputed parcel is subject to an easement by implication. Upon a prior motion to dismiss by GERETY the court dismissed the adverse possession cause of action, but denied the motion to dismiss the easement by implication cause of action. Following completion of discovery the GERETY defendants move for an order granting summary judgment dismissing the complaint against them, and the plaintiffs cross-move for an order granting summary judgment declaring that they have an easement by implication over the disputed parcel.
History of the Disputed Parcel
The disputed parcel first appears on a subdivision map entitled, “Amended Map of Alden Estates,” dated June 11, 1938, and filed in the Office of the Westchester County Clerk as Map No. 4728. The disputed parcel is not designated on the map, but it appears to be part of a street designated Priscilla Lane.
The disputed parcel next appears on a subdivision map entitled “Map of Alden Estates, Pilgrim Drive Section,” dated December 16, 1947, and filed in the Office of the Westchester County Clerk as Map No. 6505. On Map No. 6505 the disputed parcel appears as an unnumbered parcel situated between lots designated number 24 and number 47. Lot No. 47 is presently owned by the plaintiff, GEASOR, and Lot No. 24 is presently owned by the plaintiffs, TELESCO.
The western boundary of the TELESCO lot, Lot No. 24 on Map No. 6505 abuts the eastern boundary of Lot. No. 14 on Map No. 4728. The southern boundaries of these lots form one boundary line running along Priscilla Lane and the disputed parcel on Map No. 6505. Thus, on Map No. 6505 it appears that each lot abuts Priscilla Lane which intersects with Pilgrim Drive at the southeastern corner of Lot No. 24.
The disputed parcel differs from the other lots on Map No. 6505 because, unlike all the other lots depicted, it is not given a lot number. In addition, the disputed parcel is markedly narrower than the other lots depicted on Map. No. 6505. Moreover, the eastern and western boundaries of the disputed parcel are indicated by dotted lines while all the other lots on the map are marked by solid lines. Finally, the eastern boundary of the disputed parcel abuts a roadway named Priscilla Lane and its western boundary abuts a roadway named Pilgrim Drive, which runs perpendicular to Priscilla Lane. As a result, when one observes Map No. 6505 it appears that but for the dotted lines the disputed parcel is part of Priscilla Lane which runs between the plaintiffs' parcels and intersects with Pilgrim Drive.
A 1975 zoning map of the Village of Port Chester depicts the disputed parcel as Priscilla Lane. The disputed parcel was not given a tax map number until approximately 1987. An assessor's card (with the date 1992 marked on it) indicates that the disputed parcel's tax map number is Section 2, Block 3CA Lot 16. The card also designates the lot as “a paper street-Priscilla Ln.' “ The designated owner is listed as “unknown.” A subsequent assessor's card has the words, “paper street—Priscilla Ln.” crossed out, and the words, “prior 1975–no evidence lot 16 existed” inserted. On this card the owner is listed as Town of Rye as of May 15, 1995, and Brian Salerno as owner as of the same date.
In 1995 the Town of Rye obtained title to the disputed parcel pursuant to an in rem tax proceeding and sold the property at auction to Brian Salerno. When Salerno applied for a building permit the building inspectors of both the Town of Rye and the Village of Port Chester, as well as the title company retained by the Town of Rye, raised questions as to the status of the disputed parcel since it appeared from the subdivision maps that the disputed parcel was a roadway. Thereafter, the Town Board of the Town of Rye passed a resolution on April 24, 1997, which states “a title search revealed that the Town of Rye did not own the property sold to Mr. Salerno ... said property being owned by adjacent property owners.” The resolution then authorized the comptroller to refund the purchase price and taxes paid to Salerno.
Salerno did not pursue the refund. Rather, in 2005 he commenced an action to quiet title but never pursued the action. Then in 2007 he sold the disputed parcel to the defendants, GERETY.
It does not appear that the Town of Rye rescinded its April 24, 1997, resolution stating that the Town of Rye did not own the disputed parcel. However, on April 24, 2007, the Receiver of Taxes of the Town of Rye wrote a “To Whom it May Concern” letter which was presumably used by GERETY's title company to clear title. The letter provided that since Salerno continued to pay taxes on the disputed parcel after the Town's April 24, 1997, resolution the Town would consider the resolution void. The record does not disclose the Receiver of Taxes's authority for concluding that the resolution was void.
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History of Plaintiffs' Lots
The plaintiff, GEASOR, obtained title to Lot No. 47 on Map No. 6505 from the Estate of Elizabeth Groh by deed dated February 28, 1992. The deed describes the premises as Lot No. 47 on Map No. 6505. Groh received her title from Sires Realty Corporation, the original owner of the subdivision, by deed dated May 18, 1950, which also described the parcel conveyed as Lot No. 47 on Map No. 6505.
The plaintiffs, TELESCO, trace their title to a deed given by Sires Realty Corporation which does not reference Map No. 6505, but rather contains a metes and bounds description which matches the metes and bounds description of Lot No. 24 on Map No. 6505. The metes and bounds description begins at a point described as the northerly side of Priscilla Lane at the southeasterly corner of Lot 14 of Map No. 4728, and continues clockwise along four courses. The last course is described as running along the northerly side of Priscilla Lane. Thus, all deeds in TELESCO's chain of title describe TELESCO's lot as abutting Priscilla Lane.
Separate surveys prepared for the plaintiffs in 1992 and 1993 each depict the disputed parcel as “Priscilla Lane.”
Proceedings since GERETY Obtained Title to the Disputed Parcel
Beginning in 2007 GERETY sought to construct a one-family dwelling on the disputed parcel. His February 13, 2007, application for a building permit attached photocopies of two separate tax maps, each of which depict the disputed parcel as part of Priscilla Lane. When the defendant, GEASOR, learned of GERETY's plans to build on the disputed parcel she retained an attorney who wrote to GERETY on November 10, 2008, and advised that GEASOR had an interest in the disputed parcel and demanded GERETY to cease work on the disputed parcel.
Thereafter, in 2009, the building inspector for the Village of Port Chester would not let the application go forward because the disputed parcel appeared as a roadway on the subdivision maps and it was designated as Priscilla Lane on zoning maps. It appears that in response to the objections of the building inspector, the Village of Port Chester adopted a resolution on October 4, 2010, in which they “abandoned any intention or right to accept the dedication of a public street or road” on the disputed parcel. The application for a building permit then went forward and GERETY was sent to the Zoning Board of Appeals to apply for variances because the disputed parcel was too small to meet the requirements of the zoning ordinance. Plaintiffs appeared before the Zoning Board of Appeals and set forth their objection to any variances because construction on the disputed parcel would interfere with their rights in the lot. While the matter was pending before the Zoning Board of Appeals plaintiffs commenced the present action. Eventually, after the parties appeared numerous times before the Board, the Zoning Board of Appeals stayed any further proceedings pending the outcome of the present Supreme Court action.
The Law
“It is well established that when property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant” (Fischer v. Liebman, 137 A.D.2d 485, 487, 524 N.Y.S.2d 720 [2d Dept 1988] ). “The ultimate determination of whether an easement by implication is created depends on the intention of the parties at the time of the conveyance, with the most important indicators of the grantor's intent being the appearance of the subdivision map and the language of the original deeds” (Firsty v. Thomasis, 177 A.D.2d 839, 841, 576 N.Y.S.2d 454 [2d Dept 1991] [internal quotation marks and citations omitted] ).
“When property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant. In addition, in general, a deed describing the land being conveyed as bounded by a road owned by the grantor creates an easement by implication in that road, unless the intention of the parties is to the contrary based upon the circumstances” (Brennan v. Salkow, 101 A.D.3d 781, 782, 955 N.Y.S.2d 656 [2d Dept 2012] [internal quotation marks and citations omitted] ). “[I]n the absence of any evidence that the easement was terminated plaintiffs have the right to enforce it” (Clegg v. Grasso, 186 A.D.2d 909,911 [3rd Dept 1997] ).
Here, plaintiffs established their prima facie entitlement to judgment declaring that the lots they own have an easement by implication for ingress and egress over the disputed parcel. The intention of the parties to create the easement at the time Lot No. 24 and Lot No. 47 were first conveyed can be determined from a review of the subdivision maps and the language of the original deeds. Lot No. 47, owned by plaintiff, GEASOR, was first conveyed by the original owner, Sires Realty Corporation, by deed dated May 18, 1950. The deed references Map No. 6505. Map No. 6505 does not depict the disputed parcel as separate lot. Rather, it is unnumbered with dotted lines separating it from Priscilla Lane, so that it appears to be part of Priscilla Lane. Lot No. 24, owned by the plaintiffs, TELESCO, first appeared in a deed granted by the original owner, Sires Realty Corporation. It describes the premises by a metes and bounds description which matches the metes and bounds description for lot No. 24 on Map No. 6505. Moreover, the metes and bounds description references that its southern boundary abuts Priscilla Lane. Thus, from a review of the maps and deeds the implication arises that the intent of the original parties was that the owners of Lot No. 24 and Lot 47 of Map No. 6505 would have an easement for ingress and egress over the disputed parcel which was then known as Priscilla Lane.
That intention is confirmed by subsequent events. The disputed parcel was depicted as part of Priscilla Lane in subsequent municipal tax maps and zoning maps. It was described as “a paper street-Priscilla Ln.” on assessor records before the Town of Rye foreclosed and sold the property in 1995, and as not being in existence prior to 1975, according to assessor records after the foreclosure. Moreover, the intent was manifest to two different building inspectors who, after reviewing the subdivision maps, concluded that the disputed parcel was a roadway. Finally, the intent was confirmed by the Town of Rye when it resolved in 1997, after consulting with its title company, that the Town of Rye did not own the disputed parcel despite the in rem foreclosure.
In opposition, defendants failed to raise a triable issue of fact. Moreover, defendants failed to demonstrate that plaintiffs abandoned the easement. “In order to prove an abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement” (Gerbig v. Zumpano, 7 N.Y.2d 327, 331 [1960] ). Non-use alone does not establish abandonment. (Gerbig, supra ). Here, defendants did not demonstrate that the plaintiffs intended to abandon the easement or that abandonment may be implied from any of their acts or failures to act. In fact, the first time the plaintiffs knew that their rights in the disputed parcel were being interfered with (when GERETY took steps to construct residence on the disputed parcel) they took action by demanding defendants to cease activities on the disputed parcel (BJ 96 Corp. v. Mester, 222 A.D.2d 798, 634 N.Y.S.2d 843 [3rd Dept 1995] ).
Defendants' claim that laches bars plaintiffs from seeking relief is without merit.
“To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant' “ (Stein v. Doukas, 98 A.D.3d at 1026, 1028, 950 N.Y.S.2d 773 [2d Dept 2012], quoting Cohen v. Krantz, 227 A.D.2d 581, 582, 643 N.Y.S.2d 612 [2d Dept 1996] ). Here, plaintiffs had no need to assert their claims in the disputed parcel until GERETY began taking steps to construct a house on the disputed parcel when it became evident that the defendants were interfering with their rights in the disputed parcel. Moreover, under the circumstances, The GERETYS should have known when they purchased the disputed parcel, and did know shortly after they purchased the disputed parcel, that plaintiffs would assert a claim to the disputed parcel. Thus, defendants are not entitled to assert the equitable claim of laches (Stassou v. Casini & Huang Constr., 241 A.D.2d 448, 660 N.Y.S.2d 59 [2d Dept 1997] ).
Finally, Real Property Tax Law 1137 does not preclude defendants from pursuing their rights in the disputed parcel. While RPTL 1137 provides for a conclusive presumption that the in rem foreclosure proceedings were regular and in accordance with law, it does not extinguish existing easements in the property.
Settle judgment.