A.J.P. AUTO SALES LTD., INC.v.DEJANA, 2367/06

Supreme Court of the State of New York, Nassau CountyMar 26, 2010
2367/06 (N.Y. Misc. 2010)
2367/062010 N.Y. Slip Op. 50838

2367/06.

Decided March 26, 2010.

Christopher P. Kohn, Attorneys for Plaintiffs.

Goldstein Avrutine, Attorneys for Defendants.


Background

The plaintiffs initiated this action pursuant to Article 20 of the Real Property Actions and Proceedings Law seeking an order (a) enjoining the defendants from interfering and/or obstructing plaintiffs' right to traverse on the Easement, and directing the defendants and all persons claiming under him, to remove the fence erected on the easement, an (b) injunction enjoining and restraining the defendants, and all persons claiming under them, from impairing plaintiffs' right to traverse on the Easement, and (c) damages.

The plaintiff, Anthony Pergola, is the owner of A.J.P. Auto Sales Limited, Inc., (hereinafter referred to as "AJP"), and is also the owner of a parcel of real property located in Nassau County, commonly known as 18 Secatoag Avenue, Port Washington, New York. The plaintiff claims to have acquired such property by deed dated September 12, 1975, recorded in the Office of the Clerk of Nassau County on September 24, 1975.

The defendant, Peter Dejana, is the owner of a parcel of real property located in Nassau County, commonly known as 25-27 Matinecock Avenue, Port Washington, New York.

The plaintiff, Anthony Pergola, claims that he enjoys an Easement of ingress and egress over the premises to the south (over 25-27 Matinecock Avenue) to and from plaintiffs' premises to Matinecock Avenue, Port Washington, New York, and that the defendants have erected a fence on the easement, impairing the right of plaintiff to traverse on the common perpetual right of way.

Contentions

The plaintiff, Anthony Pergola, contends, essentially, that he is entitled to enjoy an easement appurtenant, of which the defendant, Peter Dejana, had actual or constructive notice of. The defendant contends, essentially, that there is no easement, that language of any purported easement is vague, and that the plaintiff's claims herein should fail in accordance with the doctrine of "law of the case".

The plaintiffs have withdrawn their claim for damages.

Findings of Fact

This Court heard the testimony of Anthony Pergola. Mr. Pergola testified that he and his wife Virginia are owners of 18 Secatoag Avenue, Port Washington, New York, a block building approximately 4,000 square feet, and that he is also the owner of A.J.P. Auto Sales, Ltd., Inc.. The subject building was first purchased by AJP Auto Sales, Ltd., Inc., and then transferred to Mr. Pergola and his wife. The property is used for auto body work, and has been used for such purpose since 1966. Mr. Pergola described the type of auto bodywork as the business of restorations, including movie cars, such as the "Bat Mobile" used in the movie with actor Michael Keaton, private cars and collector cars.

Initially, Mr. Pergola, back in 1966, rented the property from Dan Horowitz and Bob Horowitz. There is a "rolling gate door" that Pergola described as used during the final stage of a car's completion, whereby the cars are brought out and road tested. Mr. Pergola provides that this area is used every day when the business is open, and has been used for the past forty years. When Mr. Pergola purchased the property from Horowitz, by way of contract of sale, he and Horowitz agreed that there would always be an easement that went with the building, as the building would not be useful without the rear door and easement. Mr. Pergola had an understanding that the easement would last as long as his building remained a body shop, as long as he owned the building, and that the easement ran with the building.

Mr. Pergola testified that he has known the defendant, Peter Dejana, for forty years, that Mr. Dejana owns the building on the northern side of his building, and the building on the southern side of the building which contains the disputed easement herein. In 2005, a fence was put up blocking Mr. Pegola's ingress and egress with respect to the disputed easement. Mr. Pergola testified that Mr. Dejana put the fence up without Mr. Pergola's knowledge, and had not told Mr. Pergola, prior to putting up the fence, that Mr. Pergola should stop going on to his property. After the fence was put up, Mr. Pergola claims that delivery of heavy items could not be made through the back of the building, and could not be brought in through the front, as automobiles were parked in the front.

Mrs. Virginia Pergola testified that she and her husband are owners of the building located at 18 Secatoag Avenue, Port Washington, New York.

Mr. Dejana testified that he is the owner of Willowdale Properties, LLC, a real estate company, that owns the 25 Matinecock location. Willowdale Properties, LLC, purchased the property from Harvey Weisman in March of 1999. Mr. Dejana testified that he knew Mr. Pergola for fifty years, since high school. Mr. Dejana testified that sometime in 1999, and several times thereafter for a number of years, he told Mr. Pergola that he was using his property without a right to do so, that he wished he would discontinue. Mr. DeJana claims that he asked Mr. Pergola to show him a document that indicates Mr. Pergola has a right to use area in dispute and that Mr. Pergola did not show him a document. Mr. Dejana testified that prior to Willowdale's purchase of the property, and after such purchase, he did not learn about the disputed easement, and only learned it from Mr. Pergola. Mr. Pergola, on cross examination, testified that his signature was on the contract of sale between Harvey Weissman and Willowdale Properties, LLC.

Applicable Law

An easement is the right of one landowner to do something on the adjoining land of another. An easement cannot be occupied or possessed since it is an incorporeal right which derives from use. It is an interest in the land and is property, which equity can protect by injunction. (NY Jur. 2d, Easements, § 2, pg. 84, 85). "An easement appurtenant arises when the easement is: 1)conveyed in writing; 2)is subscribed by the person creating the easement; 3)which burdens the servient estate for the benefit of the dominant estate." ( Strnad v. Brudnicki, 200 AD2d 735.)

As a general rule, the Court of Appeals has held in Buffalo Academy of the Sacred Heart v. Boehm Bros., 267 NY 242, "[a] purchaser takes with notice from the record of incumbrances in his direct chain of title and in absence of actual notice before or at the time of his purchase or other exceptional circumstances, is only bound by restrictions if they appear in some deed of record in the conveyance to himself or his direct predecessors in title." In determining that the plaintiffs were entitled to an easement over the defendant's property, upon reviewing the chain of title of the defendant, the Second Department in Breakers Motel, Inc. v. Sunbeach Montauk Two, Inc., 224 AD2d 473, held that the "defendants are bound by these restrictions because, although they do not appear in the defendants' deed, they appear in the deed of a direct predecessor in title, thereby giving the defendants constructive notice. It is well settled that a person who purchases the servient estate with actual or constructive notice of the easement is estopped from denying the existence of the easement."

As already provided, an easement appurtenant occurs when the easement is created in writing, subscribed by the creator and burdens the servient estate for the benefit of the dominant estate. ( Selvaggi v. Skvorecz, 256 AD2d 324; Green v. Mann 237 AD2d 566; Strnad v. Brudnicki, 200 AD2d 735.) Once an easement appurtenant is created, it can be extinguished only by abandonment, conveyance, condemnation, or adverse possession. ( Will v. Gates, 89 NY2d 778). The mere fact that an easement may have been created out of necessity does not alter the means by which it was created, i.e., by grant, and therefore it remains inviolate as the fee favored by the grant. ( Id., Gerbig v. Zumpano, 7 NY2d 327). An easement created out of necessity is not extinguished merely because the necessity ceases. ( Will v. Gates, 89 NY2d 778).

Conclusions of Law

Here, the plaintiffs have made a prima facie showing of easement appurtenant. The Rider to the Contract of Sale dated August 6, 1973, between Horowitz and AJP contains the following language:

In the event the title company chosen by the purchaser fails or refuses to insure the easement over property known as Section 4, Block 83, Lots easterly half of Lot 13, 14 and 15, as set forth in Deed dated November, 1973, executed by Robert S. Horowitz and Dan Horowitz, as grantors, to St. Paul's Realty Corp., as grantee.* (Subject to easements and rights of others over the easterly half of Lot 13 and all of 14 and 15 for the benefit of the building occupied by Auto Body Shop, as set forth in contract dated July 27, 1973)* then this contract is null and void and the contract money hereunder shall be returned to the purchaser. The easement set forth in the contract of July 27, 1973 is as follows:

"Subject to an easement of ingress and egress Over the easterly half of lots No. 13, and all of Lots 14 and 15, for the benefit of the building Occupied as an autobody repair shop with the Further privilege to the tenant of the aforementioned Building to use and occupy three parking spaces At the northerly end of lots one-half of 13, and All of lots 14 and 15 adjoining the Seacatoag Avenue building."

The plaintiffs have established a writing subscribed by the person creating the easement right for the benefit of the plaintiff's dominant estate over the defendant's servient estate. Here, the language is "plain and direct" and plainly and unambiguously establishes an easement. However, the inquiry does not end here. At issue, is whether the defendants had notice of the plaintiff's easement rights through their own chain of title. As New York is an "Inquiry Notice" state, a purchaser of real property has a duty to inquire into another party's potential rights over the property. ( Miles v. De Aapio, 96 AD2d 970). Here, the plaintiffs have established that the defendants had notice of the plaintiff's easement in their direct chain of title, as such easement was contained in the defendants' direct predecessor's title, and by virtue of the defendants' own title insurance policy which made a specific reference to such easement. The deed with respect to defendant's property dated November 9, 1973, from Horowitz to St. Paul's Realty Corp., (the St. Paul's Deed), references the easement:

Subject to easements and rights of others over the easterly half of lot 13 and all of 14 and 15 for the benefit of the building occupied by auto body shop as set forth in contract dated July 27, 1973.

Additionally, defendant's title policy, purchased in accordance with the Contract of Sale pertaining to defendant's property, makes specific reference to the exact Liber and page of the aforementioned deed, the St. Paul's Deed which references the easement. Accordingly, the defendants had notice of an easement as it was contained in defendant's direct chain of title, and the defendant's title report, and as so, as a purchaser of real property, he has a duty to inquire into another party's potential rights over the property.

Contrary to the defendants' assertion, the prior decisions of the Honorable Justice Brandveen dated June 16, 2006 and May 9, 2007, denying plaintiffs' motion for a preliminary injunction, did not expressly hold, as stated by defense counsel, that the "plaintiffs have not established an express easement", and are not "law of the case" for such a proposition. The decision dated June 16, 2006, denied plaintiff's application for a preliminary injunction and the decision dated May 9, 2007, denied plaintiff's motion to renew and reargue on the grounds of new evidence. The aforementioned decision dated June 16, 2006 provided that the "reference to an unrecorded contract fails to plainly and unambiguously support the existence of an easement." (Notably, by way of subsequent decision dated September 17, 2008, the Honorable Justice Brandveen denied defendant's cross motion for summary judgement stating that neither party met its burden.) In any event, "a preliminary injunction is a provisional remedy and a decision concerning a preliminary injunction does not become law of the case, nor would it constitute an adjudication on the merits so as to preclude reconsideration of that issue at a trial on the merits." ( Icy Splash Food Beverage, Inc. v. Henckel , 14 AD3d 595.)

Conclusion

It is hereby,

ORDERED that the defendants are hereby enjoined from interfering and/or obstructing plaintiffs' right to traverse on the Easement, and it is hereby further

ORDERED that the defendants, and all persons claiming under him, are hereby directed to remove the fence erected on the easement, and it is hereby further

ORDERED that the defendants, and all persons claiming under them, are hereby enjoined and restrained from impairing plaintiffs' right to traverse on the Easement.