In Seebaugh v. Borruso, 220 A.D.2d 573, 632 N.Y.S.2d 800 [2nd Dept., 1995], the court stated “... It is fundamental that where the title in fee to both the dominant and servient tenements become vested in one person, an easement is extinguished [by merger]' [citations omitted]” Id. at 573, 632 N.Y.S.2d 800.Summary of this case from Knafelc v. Edwards
October 16, 1995
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the appeal from the order dated November 10, 1993, is dismissed, without costs or disbursements, as that order was superseded by the order dated May 9, 1994, made upon reargument; and it is further,
Ordered that the order dated June 17, 1994, is reversed, without costs or disbursements, and the motion for a preliminary injunction is denied; and it is further,
Ordered that the order dated May 9, 1994, is affirmed insofar as reviewed, without costs or disbursements.
"It is fundamental that where the title in fee to both the dominant and servient tenements become vested in one person, an easement is extinguished [by merger]" ( Castle Assocs. v Schwartz, 63 A.D.2d 481, 486; see also, Riccio v. De Marco, 188 A.D.2d 847). An easement, however, may be renewed in a subsequent conveyance of either lot if sufficient language is used in the conveyance making clear an intent to recreate the easement de novo ( see, Parsons v. Johnson, 68 N.Y. 62). Here, while the easement created in the 1955 deed was extinguished via merger when the dominant and servient estates came into common ownership in 1969, it was subsequently recreated de novo in 1970 when the common owner conveyed one parcel and reserved for himself the right to utilize the easement.
Insofar as every deed in the dominant chain of title contained a general appurtenance clause, the easement passed to all subsequent purchasers of the dominant estate, including the defendants herein ( see, Strnad v. Brudnicki, 200 A.D.2d 735).
We note, however, that in the absence of a counterclaim by the defendants which would provide the jurisdictional predicate for the granted relief ( see, CPLR 6301), the Supreme Court was without the power to grant a preliminary injunction to the defendants ( see, Arvay v. New York Tel. Co., 81 A.D.2d 600). Mangano, P.J., Balletta, Pizzuto and Santucci, JJ., concur.