Michalski v. Decker

8 Citing cases

  1. Brennan v. Salkow

    101 A.D.3d 781 (N.Y. App. Div. 2012)   Cited 4 times

    Here, contrary to the plaintiffs' contention, the mere descriptive reference to a “right-of-way” in a 1966 deed to the plaintiffs' predecessor did not give rise to an easement by implied grant benefitting the plaintiffs' property ( see Palma v. Mastroianni, 276 A.D.2d 894, 894–895, 714 N.Y.S.2d 537;see also Michalski v. Decker, 16 A.D.3d 469, 792 N.Y.S.2d 103). The plaintiffs' argument regarding an easement implied from a 1920 grant of part of their property is without merit ( see Palma v. Mastroianni, 276 A.D.2d at 894–895, 714 N.Y.S.2d 537;see also Michalski v. Decker, 16 A.D.3d 469, 792 N.Y.S.2d 103).

  2. Old Town Tree Farm, Inc. v. Long Island Power Auth.

    101 A.D.3d 692 (N.Y. App. Div. 2012)   Cited 15 times

    ORDERED that the order is affirmed, with costs. A party claiming entitlement to an easement by prescription must demonstrate the adverse, open and notorious, and continuous use of the subject property for the prescriptive period ( see Vitiello v. Merwin, 87 A.D.3d 632, 633, 928 N.Y.S.2d 581;Manouselis v. Woodworth Realty, LLC, 83 A.D.3d 801, 920 N.Y.S.2d 683). “Absolute necessity in fact is the standard for a finding of an easement by necessity” ( Michalski v. Decker, 16 A.D.3d 469, 470, 792 N.Y.S.2d 103;see Town of Pound Ridge v. Golenbock, 264 A.D.2d 773, 774, 695 N.Y.S.2d 388;Van Schaack v. Torsoe, 161 A.D.2d 701, 703, 555 N.Y.S.2d 836;McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541). Here, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by conclusively negating any one of the elements of an easement by prescription which, if proven at trial, would warrant the recognition of an easement by prescription ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Manouselis v. Woodworth Realty, LLC, 83 A.D.3d 801, 920 N.Y.S.2d 683;Mee Wah Chan v. Y & Dev. Corp., 82 A.D.3d at 943, 919 N.Y.S.2d 74;Bova v. Vinciguerra, 184 A.D.2d 934, 934–935, 585 N.Y.S.2d 125;cf.

  3. Shute v. McLusky

    96 A.D.3d 1360 (N.Y. App. Div. 2012)   Cited 3 times

    It is well established that an easement by necessity requires a unity and subsequent separation of the dominant and servient estates and that, at the time of the severance, an easement over plaintiff's land was “ ‘absolutely necessary ’ ” ( Simone v. Heidelberg, 9 N.Y.3d 177, 182, 847 N.Y.S.2d 511, 877 N.E.2d 1288;see Stock v. Ostrander, 233 A.D.2d 816, 818, 650 N.Y.S.2d 416). Inasmuch as Miller had access to Nichols Road from the 40–acre parcel over an adjacent parcel that she owned at the time she purchased the 40 acres, defendant has failed to establish that the easement was absolutely necessary ( see Klumpp v. Freund, 83 A.D.3d 790, 793, 921 N.Y.S.2d 121;Town of Pound Ridge v. Golenbock, 264 A.D.2d 773, 774, 695 N.Y.S.2d 388;see generally Michalski v. Decker, 16 A.D.3d 469, 470, 792 N.Y.S.2d 103). We note that the parcel adjacent to the 40–acre parcel was devised by Miller's will to defendant (Lot 1).

  4. Klumpp v. Freund

    83 A.D.3d 790 (N.Y. App. Div. 2011)   Cited 5 times

    Parcel C, which the Estate retains, affords the Estate access to the public road. Accordingly, an easement over parcel A is not absolutely necessary ( see Turner v Baisley, 197 AD2d 681; Van Schaack v Torsoe, 161 AD2d 701; see generally Michalski v Decker, 16 AD3d 469). Thus, the Supreme Court erred in granting that branch of the Estate's cross motion which was for summary judgment granting it an easement by necessity over parcel A, and, in effect, denying that branch of the cross motion of the defendants Helen Freund and Theodore Freund which was, in effect, for summary judgment declaring that the Estate did not have an easement over parcel A.

  5. Joy Bldrs. v. Shapiro

    57 A.D.3d 486 (N.Y. App. Div. 2008)   Cited 1 times

    The plaintiff claims, inter alia, that it has an easement by implication over a paper road that crosses the defendants' property, in order to access an intersecting public road. It was incumbent upon the plaintiff to make a prima facie showing, by clear and convincing evidence, that it was the intent of the original grantor, at the time of the original conveyance, to create the subject easement ( see H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d 652, 654; Michalski v Decker, 16 AD3d 469, 470; Asche v Land Bldg. Known as 64-29 232nd St., 12 AD3d 386, 387; Palma v Mastroianni, 276 AD2d 894, 894). The plaintiff failed to make that showing.

  6. Farrell v. Formica Const

    41 A.D.3d 652 (N.Y. App. Div. 2007)   Cited 10 times

    The grantees of lots abutting a street in a filed map "are entitled to have the land so demarcated remain as a street forever, absent their abandonment, conveyance, condemnation, or adverse possession" ( Bogan v Town of Mt. Pleasant, 278 AD2d 264, 265). Nevertheless, "[f]or an easement by grant to be effective, the dominant and servient properties must have a common grantor" ( Sam Dev. v Dean, 292 AD2d 585, 586), and the creation of the easement is dependent upon the intent of that original grantor at the time of the original conveyance ( see Michalski v Decker, 16 AD3d 469, 470; O'Connor v Demarest, 280 AD2d 878, 879-880; Firsty v De Thomasis, 177 AD2d 839, 841; De Ruscio v Jackson, 164 AD2d 684, 686-687). There was no evidence in the present case, either in the form of documents or testimony, regarding the language or content of the original deeds, or the manner of the original conveyances.

  7. Ellis v. Town of E. Hampton

    2017 N.Y. Slip Op. 31152 (N.Y. Sup. Ct. 2017)

    The Brennan case follows Glennon and critical language of the Brennan court is: "Here, contrary to the plaintiffs' contention, the mere descriptive reference to a "right-of-way" in a 1966 deed to the plaintiffs' predecessor did not give rise to an easement by implied grant benefitting the plaintiffs' property (see Palma v Mastroianni, 276, AD2d 894, 894-895, 714 NYS2d 537 [2000]; Michalski v Decker, 16 AD3d 469, 792 NYS2d 103 [2005]). The plaintiffs' argument regading an easement implied from a 1920 grant of part of their property is without merit."

  8. 85 S. Main St., LLC v. Cannarili

    2008 N.Y. Slip Op. 51259 (N.Y. Sup. Ct. 2008)

    Here, the plaintiff failed to establish its entitlement to summary judgment with respect to an implied easement from pre-existing use over a portion of the property currently owned by the defendant 3MF, Inc. (see, Michalski v Decker, 16 AD3d 469; Sharper Properties Enterprises, Inc. v Hubbard Sand Gravel, Inc., 12 AD3d 494). The maps submitted by the plaintiff do not provide clear and convincing evidence that during the unitary ownership of the two parcels of property prior to 1935, a right-of-way was established over 89 South Main Street, through its parking lot, and that the right-of-way was physically obvious and apparent upon reasonable inspection prior to the separation of title (see, Pastore v Zlatniski, 122 AD2d 840, 841; cf. Ryerson Tower, Inc. v. St. James Towers, Inc., 131 AD2d 744, 745).