Opinion
July 7, 1997
Appeal from the Supreme Court, Queens County (LaFauci, J.H.O.).
Ordered that judgment is reversed, on the law and the facts, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a trial on the issue of damages.
The law is clear that in determining the ultimate effect of an easement or restriction on the land of the servient land owner, the general rule is that "`[i]n the absence of actual notice before or at the time of * * * purchase or of other exceptional circumstances, an owner of land is only bound by restrictions if they appear in some deed of record in the conveyance to [that owner] or [that owner's] direct predecessors in title'" (Witter v Taggert, 78 N.Y.2d 234, 238, quoting Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N.Y. 242, 250). Here, contrary to the Supreme Court's determination, both the contract of sale and the bargain and sale deed which conveyed the title of the servient estate to the defendants Peter Casini and Thomas J. Huang created an easement in favor of the plaintiffs over the property of the defendants. The easement, therefore, was in the chain of title and all of the defendants were on notice of its existence. Moreover, the defendants, who had knowledge of the easement and were aware that the plaintiffs could assert a claim for relief, are not entitled to assert the equitable remedy of laches ( see, Dwyer v. Mazzola, 171 A.D.2d 726; 75 N.Y. Jur 2d, Limitations and Laches, §§ 337, 339).
Mangano, P. J., O'Brien, Thompson and Goldstein, JJ., concur.