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Resk v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 2002
293 A.D.2d 661 (N.Y. App. Div. 2002)

Summary

In Resk v. City of New York, 741 N.Y.S.2d 265 (N.Y.App. Div. 2002), the Court found an easement by necessity because such an easement was "reasonable for the normal development of the [property]" and "not... a mere convenience."

Summary of this case from In re Worldcom, Inc.

Opinion

2000-05055

Argued October 19, 2001.

April 22, 2002.

In an action pursuant to RPAPL article 15 for a judgment declaring that the plaintiffs have an easement by necessity or a right of way over the defendants' property, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Dye, J.), dated April 7, 2000, which denied their motion for summary judgment, granted the defendants' cross motion for summary judgment dismissing the complaint, and declared that the plaintiffs do not have an easement by necessity over the defendants' property.

Rothkrug Rothkrug, Great Neck, N.Y. (Simon H. Rothkrug of counsel), for appellants.

Dollinger, Gonski Grossman, Carle Place, N.Y. (Matthew Dollinger of counsel), for respondents Travers Tool Co., Inc., and Bank of New York.

Before: NANCY E. SMITH, J.P., SONDRA MILLER, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.


ORDERED that the order and judgment is reversed, on the law, with costs, the motion is granted, the cross motion is denied, the complaint is reinstated, and it is declared that the plaintiffs have an easement by necessity over the defendants' property.

The plaintiffs acquired title to landlocked parcels in the College Park area of Queens County. These parcels were zoned for residential use and abutted parcels owned by the defendant Travers Tool Co., Inc. (hereinafter Travers), which was zoned primarily for manufacturing. Pursuant to the College Point Industrial Project, a buffer zone was created in the Travers parcel which would serve to separate the residential zone from the manufacturing zone. In an effort to utilize their landlocked parcels for residential purposes, the plaintiffs sought a judgment declaring that an easement either of necessity or implication existed through the buffer zone, to allow them access to the defendant City of New York streets.

The plaintiffs established that they are entitled to an easement by necessity. Under the circumstances of this case, and by examining the history of the conveyances regarding the subject parcels, the establishment of an easement through the buffer zone is reasonable for the normal development of the parcels (see Palmer v. Palmer, 150 N.Y. 139; Wolfe v. Belzer, 184 A.D.2d 691). The necessity exists in fact and not as a mere convenience (see Town of Pound Ridge v. Golenbock, 264 A.D.2d 773, 774). Additionally, the action should not be barred by laches. The essential element of this equitable defense is that the delay in bringing the action is prejudicial to the defendant (see Matter of Schulz v. State of New York, 81 N.Y.2d 336; Matter of Barabash, 31 N.Y.2d 76). Prejudice is established by showing an injury, change of position, loss of evidence, or some other disadvantage resulting from the delay (see Skrodelis v. Norbergs, 272 A.D.2d 316). Here, because the easement would be over a buffer zone which none of the defendants could utilize for any development purposes, they could not establish prejudice and the defense of laches does not apply. Accordingly, the plaintiffs are entitled to an easement by necessity over the defendants' property.

SMITH, J.P., S. MILLER, LUCIANO and ADAMS, JJ., concur.


Summaries of

Resk v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 2002
293 A.D.2d 661 (N.Y. App. Div. 2002)

In Resk v. City of New York, 741 N.Y.S.2d 265 (N.Y.App. Div. 2002), the Court found an easement by necessity because such an easement was "reasonable for the normal development of the [property]" and "not... a mere convenience."

Summary of this case from In re Worldcom, Inc.

In Resk, this Court held that the plaintiffs, owners of parcels zoned for residential use, had an easement by necessity over abutting parcels zoned primarily for manufacturing use, in order to access public streets, and this Court determined that there was, in fact, a necessity for the easement for the development of the residential parcels.

Summary of this case from In the Matter of Foreclosure of Tax Liens
Case details for

Resk v. City of New York

Case Details

Full title:RICHARD RESK, ET AL., appellants, v. CITY OF NEW YORK, ET AL., respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 22, 2002

Citations

293 A.D.2d 661 (N.Y. App. Div. 2002)
741 N.Y.S.2d 265

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