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Wilmeth D. Deyo, LLC v. Ross

Supreme Court, Essex County, New York.
Nov 2, 2015
31 N.Y.S.3d 924 (N.Y. Sup. Ct. 2015)

Opinion

No. CV15–0473.

11-02-2015

WILMETH D. DEYO, LLC, Plaintiff, v. Madeline ROSS, Mark Booth, Kimberly Carr and Kristy N. Rockwell, Defendants.

John J. Gable, Esq. Latham, for plaintiff Wilmeth D. Deyo, LLC. Dennis J. Tarantino, Esq., Kenneally & Tarantino, Glens Falls, for defendants Madeline Ross, Mark Booth, Kimberly Carr and Kristy N. Rockwell.


John J. Gable, Esq. Latham, for plaintiff Wilmeth D. Deyo, LLC.

Dennis J. Tarantino, Esq., Kenneally & Tarantino, Glens Falls, for defendants Madeline Ross, Mark Booth, Kimberly Carr and Kristy N. Rockwell.

ROBERT J. MULLER, J.

By deed dated October 17, 1985, defendant Madeline Ross (hereinafter defendant) conveyed to Larry French certain premises located at 2747 Main Street in the Town of Crown Point, Essex County (hereinafter “the premises”). Defendant retained ownership of the neighboring property—where she resides—and expressly “grant[ed] to Larry French, a right of way for ingress and egress over” the 33–foot wide strip of land immediately adjacent to the premises. French thereafter opened “Frenchie's Ice Cream Stand,” and the right-of-way was used by customers for ingress and egress from the business's parking lot. By deed dated July 16, 1997, French conveyed the premises to John E. Cooper and Roberta J. Cooper. The Coopers then conveyed the premises to Ronald M. Ryan by deed dated April 27, 2011 and, by deed dated April 10, 2015, Ryan conveyed it to plaintiff Wilmeth D. Deyo, LLC, the current owner. Frenchie's has been in business continuously over the years, with each deed expressly including the right-of-way over the 33–foot–wide strip of land that was originally included in defendant's deed to French.

Plaintiff contends that, following its purchase of the premises in April 2015, defendant erected a wooden fence over the right-of-way based upon her belief that it “was a personal license for French's use only, and not a permanent easement to be used by [his] successors in title.” On August 24, 2015, plaintiff commenced this action under RPAPL article 15 to quiet title. Presently before the Court is plaintiff's motion by Order to Show Cause for a preliminary injunction directing defendant to remove the fence pending the conclusion of the action.

By deed dated September 28, 1998, defendant conveyed title to her property to her children—Mark Booth, Kimberly Carr and Kristy N. Rockwell—in equal shares, retaining a life estate for herself. Her children have thus been named as defendants.

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“A ‘party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor’ ” (Karabatos v. Hagopian, 39 A.D.3d 930, 931 [2007], quoting Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 [2005] ; see CPLR 6301 ; Doe v. Axelrod, 73 N.Y.2d 748, 750 [1988] ).

Initially, the Court finds that plaintiff has demonstrated a probability of success on the merits. There are two broad classes of easements: (1) easements appurtenant; and (2) easements in gross (see Webster v. Ragona, 7 A.D.3d 850, 852 n. 1 [2004] ; Henry v. Malen, 263 A.D.2d 698, 703 n. 3 [1999] ). “While an easement appurtenant ... provides an interest in land, an easement in gross is a ‘mere personal, nonassignable, noninheritable privilege or license’ ” (Henry v. Malen, 263 A.D.2d at 703 n. 3, 692 N.Y.S.2d 841 [citations omitted], quoting Loch Sheldrake Assoc. v. Evans, 306 N.Y. 297, 304 [1954] ; accord Webster v. Ragona, 7 A.D.3d at 852 n. 1, 776 N.Y.S.2d 347 ). “[A]n easement appurtenant is created when such easement is ‘(1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate’ ” (Niceforo v. Haeussler, 276 A.D.2d 949, 950 [2000], quoting Strnad v. Brudnicki, 200 A.D.2d 735, 736 [1994] ; accord Webster v. Ragona, 7 A.D.3d at 853, 776 N.Y.S.2d 347 ). “While it is true that ‘[w]hether an easement is appurtenant or merely a personal, noninheritable and nonassignable right depends upon the intent of the parties to the instrument in which the right-of-way was granted,’ as with any contract, where possible such intent should be gleaned solely from the language of the instrument creating the easement” (Webster v. Ragona, 7 A.D.3d at 853, 776 N.Y.S.2d 347, quoting Henry v. Malen, 263 A.D.2d at 702–703, 692 N.Y.S.2d 841 ; see Loch Sheldrake Assoc. v. Evans, 306 N.Y. at 304, 118 N.E.2d 444 ). “It is only when language used in a conveyance ‘is susceptible of more than one interpretation’ that the courts will look into surrounding circumstances, the situation of the parties, etc.” (Loch Sheldrake Assoc. v. Evans, 306 N.Y. at 304–305, 118 N.E.2d 444, quoting French v. Carhart, 1 N.Y. 96, 102 [1847] ; accord Webster v. Ragona, 7 A.D.3d at 853–854, 776 N.Y.S.2d 347 ).

Here, defendant contends that an easement appurtenant was not created because (1) the deed does not expressly state that the easement is permanent; and (2) she did not intend to grant a permanent easement. According to defendant, she intended only to grant French a personal license and then, once he conveyed the premises to the Coopers, she voluntarily allowed them to continue using the strip of land. Defendant contends that she also allowed Ryan to use the strip of land until his use became objectionable in the summer of 2014, at which time she erected the wooden fence. In this regard, defendant disputes plaintiff's allegation that the fence was not erected until April 2015.

The Court is not persuaded. The deed from defendant to French fulfills all the elements of an easement appurtenant. It conveys in writing “a right of way for ingress and egress” over the 33–foot wide strip of land on defendant's property, it is subscribed by defendant and it burdens defendant's property—the servient estate—for the benefit of the premises—the dominant estate. While the language of the deed does not specifically describe the easement as permanent, the grant of an easement appurtenant “need not include language expressly describing the easement as ‘permanent’ because an easement appurtenant, once created, necessarily runs with the land” (Webster v. Ragona, 7 A.D.3d at 854, 776 N.Y.S.2d 347 ; see Loch Sheldrake Assoc. v. Evans, 306 N.Y. at 304, 118 N.E.2d 444 ). The Court further notes that deed does “not contain any language restricting the easement or retaining any right of revocation” (Webster v. Ragona, 7 A.D.3d at 854, 776 N.Y.S.2d 347 ; see Cronk v. Tait, 305 A.D.2d 947, 948 [2003] ; Mondelli v. Homik, 288 A.D.2d 512, 513 [2001] ; Henry v. Malen, 263 A.D.2d at 703, 692 N.Y.S.2d 841 ). Under these circumstances, there is no need to look beyond the deed itself to determine that the easement created therein is an easement appurtenant that runs with the land—not an easement in gross personal to French (see Webster v. Ragona, 7 A.D.3d at 854, 776 N.Y.S.2d 347 ). In other words, there is no need to look to the intent of the parties (id. ).

Briefly, to the extent that the language in the deed may be viewed as ambiguous because it identifies French personally, “ ‘the mere fact that there ... may be questions of fact for trial does not preclude a court from exercising its discretion in granting an injunction’ ” (Karabatos v. Hagopian, 39 A.D.3d at 931, 833 N.Y.S.2d 700, quoting Egan v. New York Care Plus Ins. Co., 266 A.D.2d 600, 601 [1999] ).

The Court next finds that plaintiff has demonstrated both irreparable injury in the absence of an injunction and that a balance of the equities are in its favor. Plaintiff has shown that defendant's conduct in blocking the easement has resulted in danger to its customers and employees, submitting a photograph of a collision that occurred in its parking lot when a vehicle hit a truck while attempting to leave “by backing out ... instead of going around the building and [exiting] over the [e]asement.” Plaintiff has further shown danger to the general public, because without the turnaround that the easement provided, its customers “must only use the northern entrance to the [p]remises, thus causing traffic backups in [its] parking lot which spill over onto N.Y. [Route] 22, the main vehicular traffic artery in Crown Point.”

While defendant's contention that the fence was erected prior to plaintiff's purchase of the property may suggest that a balance of the equities is in her favor, given the danger that has resulted from placement of the fence, the Court nonetheless finds that a balance of the equities lies with plaintiff (see Ponito Residence LLC v. 12th St. Apt. Corp., 38 Misc.3d 604, 611, 959 N.Y.S.2d 376 [Sup Ct, N.Y. County 2012] ).

Based upon the foregoing, plaintiff's motion for a preliminary injunction is granted. Defendant shall have sixty (60) days from the date of service of a copy of this Decision and Order with notice of entry thereon to remove the wooden fence blocking the right-of-way over the 33–foot–wide strip of land.

The preliminary injunction granted herein is conditioned upon plaintiff filing an undertaking in the amount of $5,000.00 with the Essex Count Clerk within fifteen (15) days of the date of this Decision and Order (see CPLR 6312[b] ; Margolies v. Encounter, Inc., 42 N.Y.2d 475, 479 [1977] ; Confidential Brokerage Servs., Inc. v. Confidential Planning Corp., 85 A.D.3d 1268, 1270 [2011] ; Emerging Vision, Inc. v. Main Place Opt., Inc., 11 Misc.3d 1057[A], 2006 N.Y. Slip Op 50261[U], *6 [Sup Ct, Nassau County 2006] ), providing both counsel for defendant and the Court with a filed copy of the same.

Therefore, having considered the Affirmation of John J. Gable, Esq. with exhibits attached thereto, dated August 20, 2015, submitted in support of the motion; Affidavit of Larry French with exhibits attached thereto, sworn to July 22, 2015, submitted in support of the motion; Affidavit of Wilmeth Deyo with exhibits attached thereto, sworn to July 24, 2015, submitted in support of the motion; Affidavit of John E. Cooper with exhibits attached thereto, sworn to August 17, 2015, submitted in support of the motion; Affidavit of Ronald M. Ryan with exhibits attached thereto, sworn to July 28, 2015, submitted in support of the motion; Supplemental Affidavit of John J. Gable, Esq. with exhibit attached thereto, sworn to August 27, 2015, submitted in support of the motion; Affidavit of Wilmeth Deyo with exhibits attached thereto, sworn to September 21, 2015, submitted in support of the motion; Affirmation of Dennis J. Tarantino, Esq., dated October 2, 2015, submitted in opposition to the motion; Affidavit of Madeline Ross with exhibits attached thereto, sworn to October 1, 2015, submitted in opposition to the motion; Reply Affirmation of John J. Gable, Esq ., dated October 7, 2015, submitted in support of the motion; and oral argument having been heard on October 9, 2015 with John J. Gable, Esq. appearing in support of the motion and Dennis J. Tarantino, Esq. appearing in opposition thereto, it is hereby

ORDERED that plaintiff's motion for a preliminary injunction is granted; and it is further

ORDERED that defendant shall have sixty (60) days from the date of service of a copy of this Decision and Order with notice of entry thereon to remove the wooden fence blocking the right-of-way over the 33–foot–wide strip of land; and it is further

ORDERED that the preliminary injunction granted herein is conditioned upon plaintiff filing an undertaking in the amount of $5,000.00 with the Essex Count Clerk within fifteen (15) days of the date of this Decision and Order; and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order is returned to counsel for plaintiff for filing and service with notice of entry. The above-referenced submissions have been filed by the Court.


Summaries of

Wilmeth D. Deyo, LLC v. Ross

Supreme Court, Essex County, New York.
Nov 2, 2015
31 N.Y.S.3d 924 (N.Y. Sup. Ct. 2015)
Case details for

Wilmeth D. Deyo, LLC v. Ross

Case Details

Full title:WILMETH D. DEYO, LLC, Plaintiff, v. Madeline ROSS, Mark Booth, Kimberly…

Court:Supreme Court, Essex County, New York.

Date published: Nov 2, 2015

Citations

31 N.Y.S.3d 924 (N.Y. Sup. Ct. 2015)