174 New Dorp Lane Realty, Inc. v Marino
Annotate this CaseDecided on May 26, 2009
Civil Court of the City of New York, Richmond County
174 New Dorp Lane Realty, Inc., Petitioner(s), Plaintiff(s),
against
Joseph Marino, ANNA MARINO, B & A JEWELERS, INC., JANE DOE, JOHN DOE and 172 New Dorp Lane LLC, Respondent(s), Defendant(s)
L & T51179/07
Attorney for Petitioner:
Nichole E. Lee, Esq.
291 Jewett Avenue
Staten Island, New York 10302
Attorney for Respondent:
Howard M. File, Esq.
260 Christopher Lane, Suite 102
Staten Island, New York 10314
Philip S. Straniere, J.
Petitioner, 174 New Dorp Lane Realty, Inc., commenced this summary proceeding against the respondents, Joseph Marino, Anna Marino, B & A Jewelers, Inc., "Jane Doe," "John Doe," and 172 New Dorp Lane LLC, alleging that the respondents remained in possession of a bathroom physically located on petitioner's premises without petitioner's consent. All of the parties are represented by counsel.
There is also a companion action in Supreme Court, Richmond County (Index No.102150/07) brought by 172 New Dorp Lane LLC against 174 New Dorp Lane Realty, Inc., concerning ownership of the bathroom space. In that action the plaintiff is alleging ownership of the bathroom by adverse possession. A previous stay of the Civil Court litigation by the Supreme Court has been vacated permitting this summary proceeding to go forward. [*2]
In April 2008, this court denied both a motion by respondents seeking summary judgment dismissing the petition and a cross-motion by petitioner dismissing the respondents' motion without prejudice to renew upon receipt of proof that the stay in Supreme Court had been lifted.
In November 2008, the court addressed petitioner's motion for summary judgment alleging that there are no triable issues of fact, seeking a money judgment for use and occupancy and striking respondents' first and second affirmative defenses. As well as respondents cross-motion for a stay of this proceeding.
On November 21, 2008 the court in a written decision determined that the bathroom is located on the real property owned by the petitioner, 174 New Dorp Lane and that the respondents have no ownership interests. The court denied respondents' claim of adverse possession of the bathroom as well as denying respondents' allegation that a valid prescriptive easement existed.
The court also denied petitioner's motion for summary judgment; granted petitioner's motion to strike respondents' first affirmative defense; and denied petitioner's motion to strike the second affirmative defense of improper service of the predicate notice setting the matter of service of the predicate notice down for a traverse hearing. The court also scheduled a trial on the issue of whether or not respondents have either an easement by necessity or an easement arising on severance of title. Respondents subsequently withdrew their request for a traverse hearing.
A trial on the issue of the existence of an easement commenced on February 25, 2009 and
concluded on March 4, 2009. A briefing schedule was agreed to by the parties after that date.
DEVELOPMENT OF THE PROPERTY:
The subpoenaed records show that in July 1952, 170 New Dorp Lane (NDL) was developed on the property. There appears to have been a building in existence at 172 NDL since 1947 (NB 310/47). In 1961 the property was subdivided so as to build an addition to 170 NDL (Alteration 128/61) along with alterations to 172 NDL (Alteration 26/61). At that time the land where 174 New Dorp Lane is located is shown as vacant land. In October 1977, plans were filed to construct a one story auto show room at 174 NDL (Alteration 272/77). On these plans, what is now 172A NDL appears to be part of 174 NDL and not 172 NDL. There are two bathrooms on the plans for 174 NDL, both of which are entered from 174 NDL and are separated from 172A NDL by a partition wall. There is no bathroom in 172A NDL.
In March 1981, Ben Marino and Anna Marino acquired all three properties, 170-172-174 NDL. In September 1981, a permit was issued covering all three addresses to add three new bathrooms to the three already existing there. In February 1982, 170 NDL was conveyed by the Marino's to a third party named Lindenmayer. In July 1998 Ben Marino passed away and Anna [*3]Marino, as surviving tenant by the entirety, transferred title to 172 and 172A NDL to Joseph Marino in August 1998. Joseph Marino then executed a deed putting title to both 172 & 172A NDL in the 172 New Dorp Lane LLC. On May 13, 2004, the "Marino Revocable Trust individually and as Trustee" conveyed title to 174 NDL to Raffaele DiMaggio and Peter DiMaggio. Title to the premises had been transferred to "Anna Marino, as Trustee of the Marino Revocable Trust" by deed dated November 22, 2002 from Anna Marino.[FN1]
Buildings Department records show the filing of a request for an alteration dated October
1986 to create four stores instead of three on the zoning lot. The new address is tentatively
designated as "174A New Dorp Lane." There were plans filed in January 1984 seeking to create
the space known as 172A NDL. Under this filing the entrance to the bathroom in question was
from 172A NDL. However, under these plans, the layout of 172A NDL included a portion of the
current 174 NDL property. The entrance to the bathroom was from the rear of the premises. By
January 1985 plans were filed to create a restaurant at 174 NDL and the bathroom in question,
although fully within 174 NDL had its entrance door relocated so as to open into 172A NDL. A
certificate of occupancy issued in April 1989 reflects the division of 174 NDL into an eating and
drinking establishment and a separate retail store which subsequently became known as 172A
NDL. No certificate of occupancy on record acknowledges the premises designated as 172A
NDL as a separate address. All certificates of occupancy show 174 NDL as being divided into
two separate spaces, an eating and drinking establishment and a retail store.
[*4]
LEGAL ISSUES PRESENTED:
The court has previously concluded that the petitioner is the owner of the bathroom. The deeds, surveys and Buildings Department records submitted show that the bathroom in question is solely within the property line of the petitioner. Respondents do not dispute this fact. Respondents have failed to produce any documentary evidence which would indicate that they retained any recorded ownership or use interest in the bathroom. At trial the court was provided a copy of the contract of sale dated February 25, 2004 from Anna Marino to petitioners predecessors in interest. It contained the following paragraph: Q. Seller warrants that the bathroom in use by the adjacent store is the property of the property being transferred and has attached a survey and letter from the sellers [sic] architect. If the seller cannot transfer the property without this portion of the premises the purchaser will have the right to cancel this contract. Seller has made no written or oral agreement with the adjacent store owner reserving the use of the bathroom to the adjacent store owner. This representation shall survive delivery of the deed.
In spite of the above contract language it should be noted that the deed dated May 13, 2004 to petitioner's predecessor in interest does not include any reference to the bathroom. Respondents have not produced any documentation from the deed giving them title to 172A NDL reserving any interest in the bathroom.
The court also previously concluded that the respondents have failed to establish the
requisite facts to entitle them to claim either adverse possession of the bathroom or a prescriptive
easement permitting their continued use.
A. Do Respondents Have an Easement by Necessity or an Easement Arising on
Severance of Title?
It can be argued that the respondents, when title was conveyed of the premises to the petitioner's predecessor in interest, retained an easement by necessity in the bathroom because the adjacent commercial space at 172A NDL is required by law to have a bathroom and there is none at that location independent of the one on 174 NDL's property. If this is accurate, this situation may require the continued use of the lavatory in petitioner's premises by the owner of 172A NDL so as to not make 172A NDL unusable as commercial space. Needless to say, there do not appear to be any reported cases of easements for bathrooms.
The New York City Buildings Code Reference Standard Table 16-5 requires that every mercantile establishment have at least one lavatory. If 172A NDL does not have its own lavatory and the use of the petitioner's bathroom by 172A NDL was created prior to the severance of title to 174 NDL it is possible that either an easement by necessity or an easement arising upon severance of title has been created. The Buildings Department records indicate that the current configuration of the bathroom existed when the petitioner's predecessor in interest purchased the [*5]premises in May 2004. The bathroom appears on plans filed with the Buildings Department in October 1977 as wholly within 174 NDL. There was no separate store designated as 172A NDL at that time. By January 1984 there was a separate store cut from 174 NDL which is now 172A NDL. This store had access to the bathroom although at that time, the floor plan of the two stores was different from how it is currently configured. By July 1985 the stores had the current layout with the entrance to the bathroom being directly from 172A NDL through what would otherwise be a solid partition wall. It should be noted that at trial it was testified that 174 NDL has had access to storage space over this bathroom from the store at 174 NDL.
An easement of necessity is the result of the presumption that when a party conveys real property, he or she retains whatever is necessary for the beneficial use of the land the grantor still possesses, while an easement arising after severance of title results from an apparent, continuous, pre-existing use (49 NY Jur 2d Easements §87). A key element in determining the existence of these easements is the intent of the parties. It must be concluded that when 172A NDL was conveyed to respondents in 1998 from Anna Marino, surviving tenant by the entirety, the parties intended to allow 172A NDL to continue to use the bathroom. Anna Marino at that time retained title to 174 NDL and permitted the continued use until entering into the contract in 2004 to sell 174 NDL to the petitioner's predecessor in interest containing the clause making the representation that 172A NDL had no right of ownership or use of the bathroom. Both the petitioner and the other respondents may have a right of action against Anna Marino for damages arising as a result of this situation- petitioner because it has been denied the use of the space, and respondents because they believed that they had the right to use the bathroom. The execution of the contract to sell 174 NDL establishes that there was no intent by Anna Marino to permit the continued use of the bathroom by 172A NDL. If this is contrary to the intent of the parties when title to 172A NDL was conveyed, there may be a cause of action against her by the owners of 172A NDL.
An easement by implication arising from an existing use upon severance of title, is recognized whenever land under single ownership is divided into separately owned parcels. The grantor of the land impliedly grants to the grantee all those apparent and visible easements that are necessary for the reasonable use of the property and are, at the time of the grant, used by the owner of the entirety for the benefit of the part granted (49 NY Jur 2d Easements §64). On their face, the facts of this case lead to the conclusion that respondent has a viable claim that such an easement by implication exists. The property 170-172-172A-174 New Dorp Lane were all at one time owned by Ben Marino and Anna Marino. Initially 170 NDL was conveyed to a third party. In 1998 172 NDL and 172A NDL were conveyed by Anna Marino to Joseph Marino and from Joseph Marino to 172 New Dorp Lane LLC with Anna Marino retaining ownership of 174 NDL. Until the conveyance of 174 NDL to petitioner in 2004, respondent had continued uninterrupted use of the bathroom. Use of the bathroom by 172A NDL was necessary in order to have 172A NDL as a viable rentable commercial space because it lacked its own bathroom. Because of the joint ownership of all of these properties by Anna Marino, the Buildings Department permitted this situation to exist. However, when she conveyed title to petitioner's predecessor in interest in 2004, she terminated any rights she had in the use of 174 NDL's bathroom and she affirmatively [*6]represented to petitioner's predecessor in interest that 172A had no ownership or easement right in the bathroom.
An easement by necessity may arise even if there is no pre-existing use and as a consequence of and in accord with the presumed intention of the parties. An easement by necessity is the result of the presumption that when a party conveys property, the grantor conveys whatever is necessary for the beneficial use of the conveyed property (49 NY Jur2d Easements §87). However, no easement by necessity may be implied unless the necessity is real and reasonable, and not merely matter of convenience (49 NY Jur2d Easements §90). Both parties had experts testify. They were in agreement that a bathroom could be built to service 172A NDL. They recognized that there were in fact at least four different scenarios to accomplish this with the only difference being the cost to the owner of 172A NDL for the installation of its own bathroom. None of the estimates exceeded $15,000.00 and three of the four would not require the consent of the petitioner to accomplish. The fact that there are reasonable, viable alternatives to the alleged easement, defeats any claim that an easement by necessity exists. Respondent can install a bathroom at 172A NDL for nominal cost which could be recovered in the rent charged to a tenant at the premises.
The question remains, could Anna Marino's actions terminate the easement arising upon
severance and respondents' rights to use the bathroom? The answer under these facts must be yes
because she conveyed 174 NDL to petitioner's predecessor in interest affirmatively renouncing
any claim of right to the bathroom. However, by doing this, she exposed herself to a damage
claim from respondents. Anna Marino could have avoided this entire situation by installing a
bathroom at 172A NDL any time before the above referenced conveyances or by affirmatively
terminating the easement in the bathroom when title to 172A NDL was conveyed or by reserving
the easement for 172A NDL when she sold 174 NDL; she did none of these. Assuming that the
petitioners and respondents were good faith purchasers of their respective properties, neither of
them did anything to create this situation. Anna Marino as the seller is responsible and she is
liable for the damages incurred-the cost of installing a bathroom at 172A NDL and the
diminution in the value of 174 NDL owing to its inability to have use of all of the property
purchased.
CONCLUSION:
Petitioner has proven its prima facie case. Petitioner is the owner of the bathroom located in 174 New Dorp Lane and currently being used by 172A New Dorp Lane without its consent. Petitioner is entitled to possession of the bathroom. Respondents have no right, title or interest in the bathroom. They have no ownership interest or easement existing in the bathroom.
A warrant of eviction will be issued forthwith. There shall be no stay in the execution of the warrant.
Respondent 172 New Dorp Lane LLC shall give petitioner access to 172A New Dorp Lane within ten (10) days of the date of this decision so as to close the access from 172A New [*7]Dorp Lane to the bathroom. Petitioner shall complete such enclosure within ten (10) days of receiving access. This shall be at the petitioners cost and expense.
Respondent 172 New Dorp Lane LLC is liable to petitioner for use and occupancy for the bathroom. However, as there was no testimony from an expert as to the reasonable rental value of the bathroom space or to any diminution in value to 174 New Dorp Lane by it being denied use of the space since its purchase, no monetary damages will be awarded. Petitioner may pursue any damage claims it has in a plenary action.
Respondent 172 New Dorp Lane LLC is enjoined from re-renting 172A New Dorp Lane until a new final certificate of occupancy is issued for the premises.
Anna Marino's motion to dismiss this proceeding against her is granted. She has no interest or right of occupancy in the premises at this time. However, she is liable to respondent 172 New Dorp Lane LLC for damages, the cost of installing a new bathroom in the premises 172 A New Dorp Lane. She may also be liable to petitioner for her failure to deliver the premises as contracted.
Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.
The foregoing constitutes the decision and order of the court.
Dated:May 26, 2009
Staten Island, NYPhilip S. Straniere
Judge, Civil Court
ASN byon
Footnotes
Footnote 1: It may be necessary for a
correction deed to be filed. The title report issued when petitioner's predecessor in interest
purchased the premises lists title in the name of "Anna M. Marino, as Trustee of the Marino
Revocable Trust" having acquired title from Anna M. Marino. The title report also raised an
exception which required that Anna M. Marino join in the conveyance of the premises
individually in order to terminate a life estate created in a Deed recorded in Reel 14698 Page 135
which is the same deed which created the Marino Revocable Trust. The deed recorded
transferring title to petitioner's predecessor in interest is from Marino Revocable Trust (typed)
followed by the handwritten notation "individually and as trustee" and signed by Anna Marino,
Trustee (typed) and individually (handwritten). There is no mention of the termination of the life
estate, the title has her name as Anna M. Marino yet the deed is signed Anna Marino with no
middle initial and Anna M. Marino is not listed as a grantor by name.
Attorney for Petitioner:Nichole E. Lee, Esq.
291 Jewett Avenue
Staten Island, New York 10302
Attorney for Respondent:Howard M. File, Esq.
260 Christopher Lane, Suite 102
Staten Island, New York 10314
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