February 15, 1990
Appeal from the Supreme Court, Albany County (Kahn, J.).
Plaintiff and defendant John Monette, who are brother and sister, each inherited a home through the last will and testament of their father. Plaintiff inherited her father's actual residence at 90 Hawthorne Avenue in the City of Albany. Monette inherited the contiguous parcel located at 88 Hawthorne Avenue. A blacktop driveway, approximately 10 feet wide, runs between the two houses and has been used as an entrance and exit to both homes for over 25 years. A survey made for plaintiff in January 1986, in connection with a proposed sale of her parcel, located the driveway on the land accompanying her brother's house. A concrete cinderblock garage is located at the rear of plaintiff's two-family home, with its bays opening onto the driveway. The driveway provided access to the garage to the father, during his lifetime, and to plaintiff and her tenants and visitors until Monette ordered such use to stop in February 1986.
The following month, plaintiff commenced this action for a declaration of "an easement of access for ingress and egress" over the driveway. Supreme Court granted plaintiff's motion for summary judgment to the extent of finding that "plaintiff is entitled to the relief requested as to the existence of a right-of-way by necessity" over defendants' property, and referred the matter to Trial Term for an inquest of damages, if any. Defendants appeal and urge that plaintiff could easily put the overhead doors at the rear of the garage and utilize the neighbor's driveway to access the remodeled garage. We find such a suggestion irrelevant to the issues on this appeal and affirm the order of Supreme Court.
The facts being undisputed, the only issue is whether, as a matter of law, the facts provide an implied easement or an implied easement by necessity to plaintiff. Generally, an implied easement arises upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate (49 N.Y. Jur 2d, Easements, § 65, at 159; see, Heyman v Biggs, 223 N.Y. 118, 125). An easement by necessity is also an implied easement dependent on the unity of ownership followed by a severance thereof. An easement by necessity, however, rests not on a preexisting use, but on the need for the way for the beneficial use of the property after conveyance (49 N.Y. Jur 2d, Easements, § 94, at 197; Coyne v New York State Teachers' Retirement Sys., 257 App. Div. 1006, 1007, affd 283 N.Y. 614). In our view, plaintiff has demonstrated her legal entitlement to the easement she seeks under both legal theories present here. The determination of Supreme Court that an implied easement exists in favor of plaintiff should, therefore, be affirmed (see, Moody v Sun, 127 A.D.2d 570, 571, lv denied 70 N.Y.2d 604).
Order affirmed, with costs. Casey, J.P., Weiss, Levine, Mercure and Harvey, JJ., concur.