Butts v Moreno

[*1] Butts v Moreno 2009 NY Slip Op 51674(U) [24 Misc 3d 1230(A)] Decided on August 3, 2009 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 3, 2009
Supreme Court, Kings County

Richard Butts and ANNETTE BUTTS, Plaintiffs,

against

Anthony Moreno, Defendant.



22468/08



Plaintiffs were represented by Sanem Ozdural, Esq. of Vernon & Ginsburg, LLP.

Defendant was represented by James Thomas, Esq. of Thomas & Spikes, Esqs.

Jack M. Battaglia, J.

Plaintiffs Richard Butts and Annette Butts are the owners of residential real property located at 893 East 54th Street, Brooklyn. Defendant Anthony Moreno is the owner of residential real property at 889 East 54th Street. With this action, Plaintiffs seek to enforce alleged rights to a reciprocal easement on a strip of property that lies between the residences.

The Verified Complaint alleges a single cause of action, designated "Ejectment and Damages," purportedly pursuant to Articles 5 and 15 of the Real Property Actions and Proceedings Law. The common law action for ejectment, however, to the extent it has been supplemented or modified by statute, is governed by Article 6 of the Real Property Actions and Proceedings Law. The relief sought is clear, however, "[a]n Order requiring defendant and every person claiming under the defendant to remove the encroachments on the easement," and "[c]ompensatory and punitive damages, along with sanctions, in an amount to be determined by the court."

Defendant's Answer, which he verifies, in effect denies most of allegations of the Verified Complaint, then alleges seven "Affirmative Defenses" and a Counterclaim. For present purposes, Defendant alleges that Plaintiffs have abandoned their rights to the easement (Fourth Affirmative Defense) and that he obtained superior rights through adverse possession (Seventh Affirmative Defense). With his Counterclaim, Defendant "seeks a finding and declaration that the plaintiff's [sic] easement and right of way be deemed cancelled and extinguished."

Plaintiffs acquired their property with a deed dated November 8, 1978, "[t]ogether with the benefits and subject to the burdens of a declaration of easement made by East 54th Street [*2]Homes, Inc. dated Nov. 28th, 1955 and recorded in Liber 8398 cp 237." Defendant acquired his property on March 16, 1995, "[t]ogether with the benefits and subject to the burdens of two declarations of driveway easements, recorded . . . in Libers [sic] 8398 cp 237 and Liber 8491 cp 169." The referenced Declaration of Easement common to the two deeds established "easements for rights of way for the exclusive benefit of the owners and mortgagees of the respective lots adjacent to each right of way," described by metes and bounds as two "strip[s] and parcel[s] of land" 8 feet by 100 feet, with the shorter boundaries facing and parallel to East 54th Street and the longer boundaries extending from East 54th Street to Glenwood Road. Each of the adjacent lots here, 889 and 893 East 54th Street, is 100 feet deep.

Further, the grantor declared "that each of the said rights of way shall be used by pedestrians and as a common driveway for the purpose of ingress and egress for pleasure automobiles only to and from East 54th Street and garages or parking areas erected or that may be erected upon the rear of said premises . . . adjacent to each of the said right of way respectively"; and that "each of the said rights of way shall be maintained and kept open and unobstructed by the respective owners of the lots of land . . . adjacent to each right of way respectively for the exclusive and mutual benefit of the respective present and future owners and mortgagees of said premises adjacent to each right of way."

Finally, the Declaration of Easement states that the lots "adjacent to each right of way shall carry and be subject to the dominant and servient reciprocal easements," and "said covenants and easements shall be considered as covenants running with the land adjacent to said rights of way." The "strip and parcel" subject to the reciprocal easement here is apparently still owned by the grantor.

In support of their motion, Plaintiffs submit the Affidavit dated February 19, 2009 of plaintiff Richard Butts. Attached to the Affidavit are two photographs, asserted to be "a fair and accurate depiction of the easement since the summer of 2007" (Affidavit, ¶ 8.) An additional six photographs are attached to the Verified Complaint in support of the allegation that "[i]n July 2007, defendant constructed a chain link fence, a step and a gate which encroached on the easement and prevented plaintiffs from using the common driveway" (Verified Complaint, ¶ 11.) Also attached to the Affidavit are a report and survey drawing of licensed land surveyor Everton W. Green.

The six photographs attached to the Verified Complaint are not referred to in the Affidavit, and are not otherwise rendered admissible as evidence. (See Corsi v Town of Bedford, 58 AD3d 225, 228-29 [2d Dept 2008].) They are only considered, therefore, to the extent adverse to Plaintiffs. The report of Mr. Green is unsworn and not otherwise rendered admissible in evidence, and will not be considered at all.

Nonetheless, it is clear from Mr. Butts's affidavit and the admissible photographs that Plaintiffs have established prima facie that Defendant has constructed a chain-link gate and fence [*3]at the rear of the common driveway that would make it impossible for a "pleasure automobile" to access the rear of Plaintiffs' property. The Affidavit and photographs also establish prima facie that there exists a single step, apparently concrete, leading to a door to Defendant's residence, which step extends nine inches into the common driveway. Mr. Butts acknowledges, however, that "the encroachment [of the step] is not such as to hinder our use of the easement" (Affidavit, ¶ 25.)

Mr. Butts also acknowledges that, when Plaintiffs purchased their property, "the back part of the property was fenced in to create a backyard"; they "retained the fencing, with the intention of removing it when [they] needed to use the backyard to park a car"; and they "built a garage in front of [their] house so that [they] could use the back of [their] property as a rear yard while [their] children were young." (Affidavit, ¶ ¶ 8, 10.) Mr. Butts asserts that Plaintiffs "have used the easement for pedestrian use to and from East 54th Street," and "have used the easement to access the back of [their] property more than 3-4 times a week since 1978." (Id., ¶ 16.)

Plaintiffs understand that the facts acknowledged by Mr. Butts form the basis of Defendant's contention in his Fourth Affirmative Defense that Plaintiffs have abandoned their rights to the easement, at least insofar as the easement would provide automobile access to the rear of their property. (Affidavit, ¶ 23; Memorandum of Law at 7-10.) And they understand that the nine-inch intrusion of the step into the common driveway for more than ten years, which they do not deny, forms the basis of Defendant's contention in his Seventh Affirmative Defense that he has obtained exclusive right to that part of the driveway by adverse possession. (Affidavit, ¶ 24; Memorandum of Law at 13-16.) Plaintiffs also recognize that the step might not, in any event, violate any right to the easement. (Affidavit, ¶ 26.)

The question, then, is whether, notwithstanding their prima facie showing as to Defendant's alleged interference with their rights to the easement, Plaintiffs have not themselves also raised triable issues. The Court notes that Defendant's opposition does not add much factually to what appears from Plaintiffs' papers. He provides 15 photographs, 11 of which are rendered admissible as evidence (Affidavit in Opposition, ¶ ¶ 2, 9.) The photographs are helpful, but do not dispute Plaintiffs' showing. Defendant also makes clear that the step to his residence was constructed prior to his purchase of the property in 1995.

"A co-owner of an easement in common, including easements of way held in common, must not interfere with the reasonable use of the easement by his or her co-owners, or make alterations that will render the easement appreciably less convenient and useful to any one of the cotenants." (49 NY Jur Easements and Licenses in Real Property § 138; see also Mykoff v Rubenfeld, 149 AD2d 574, 574 [2d Dept 1989]; Smith & Sons Carpet Co. v Ball, 143 AD 83, 86-89 [2d Dept 1911]; Meyerson v Mele, 33 Misc 2d 972, 974-75 [Sup Ct, Bronx County 1962], aff'd 19 AD2d 588 [1st Dept 1963]; Roche v Cerrato, 10 Misc 2d 331, 333-34 [Sup Ct, Queens County 1958], rev'd on other grounds 8 AD2d 846 [2d Dept 1959].)

There can be no dispute that the gate and fence installed by Defendant at the rear of his [*4]property would make it impossible for a passenger vehicle to access the rear of Plaintiffs' property; it is clear and obvious from Plaintiffs' admissible photographs. Nor does Defendant attempt to dispute it. He contends, instead, that Plaintiffs have abandoned the easement as a "common driveway for the purpose of ingress and egress for pleasure automobiles to and from . . . [a] garage[ ] or parking area [ ] . . . upon the rear" of Plaintiffs' property. The contention is based upon Plaintiffs' lack of use of the easement as a "driveway" for that purpose, the fencing of the entire rear part of their property, and the construction of a garage at the front of their property.

The principles governing alleged abandonment of an easement are clear and well-established:

"[N]onuser alone, no matter how long continued, can never in and of itself extinguish an easement created by grant . . . In order to prove an abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement . . . [A]cts evincing an intention to abandon must be unequivocal." (Gerbig v Zumpano, 7 NY2d 327, 330-31 [1960]; see also Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 39-40 [1986]; Welsh v Taylor, 134 NY 450, 457 [1892]; Spier v Horowitz, 16 AD3d 400, 401 [2d Dept 2005].)

Moreover, "[a] party relying upon another's abandonment of an easement by grant must produce clear and convincing proof of an intention to abandon it'." (Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d at 39-40 [quoting Hennessy v Murdock, 137 NY 317, 326 (1893)]; see also Salmon v Mack, 228 AD2d 576, 576 [2d Dept 1996].) The "burden to show abandonment of an easement by grant is a heavy one." (See Chapman v Vondorpp, 256 AD2d 297, 298 [2d Dept 1998].)

The evidence here does not raise a triable issue of abandonment. The rear part of Plaintiffs' property was already fenced when they purchased the property more than 30 years ago, but that in itself would not preclude a finding of abandonment. The governing principles make failure to act sufficient when accompanied by an intention to abandon. Neither the fencing, nor the garage Plaintiffs constructed at the front part of their property, obstruct the driveway; and even the "construction of obstructions on the easement" has been found to be "merely evidence of non-user and nothing more' " (see Will v Gates, 254 AD2d 275, 276 [2d Dept 1998] [quoting Welsh v Taylor, 134 NY at 459].)

More than a century ago, the Court of Appeals considered an easement on an alley where "as early as 1842 a brick building was erected . . . , the easterly wall of which had no opening through which access could be had to the alley, and a high board fence without opening was maintained from the rear of the house to the end of the lot thus shutting out the owners and occupants of that lot from the alley until 1879 when plaintiff opened a door through the fence." (See Welsh v Taylor, 134 NY at 457.) "The erection of the house and fence without an opening on the east gives no indication of an intent to abandon the easement"; "[i]t indicates no more than that the owner . . . did not use the alley." (Id. at 459.) [*5]

As clear as it is that Defendant's gate and fence would unreasonably interfere with Plaintiffs' rights to the easement, it seems equally clear that the concrete step at the side entrance to his residence would not. "As a rule, when the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder." (Lewis v Young, 92 NY2d 443, 449 [1998]; see also Guzzone v Brandariz, 57 AD3d 481, 482 [2d Dept 2008].) Although Plaintiffs acknowledge that "the encroachment [of the step] is not such as to hinder [their] use of the easement," they rely on the language in the Declaration of Easement that the "rights of way shall be maintained and kept open and unobstructed by the respective owners" in contending that Defendant "must remove the step." (Affidavit of Richard Butts, ¶ 26.)

Again, the result is determined by a decision more than a century ago. A deed provided that a designated Avenue "be forever kept open and unobstructed as a street, way or thoroughfare, for the use and benefit of all parties thereto." "It was a private way, in which each owner of a fee . . . had a right to an open and unobstructed' street, way or thoroughfare, but this was not a covenant on the part of either the grantor or the grantee that the street, way or thoroughfare' should be absolutely unobstructed, in the sense that it should not contain a tree or shrub or hitching post or horse block." (See O'Beirne v Gildersleeve, 116 AD 902, 904 [2d Dept 1907].) "The fair and rational construction of this covenant, in view of the purposes which the parties had in mind in reaching the agreement, . . . was that the way should be kept open to its full width, subject to such uses on the part of the owners of the fee as should not interfere with the rights of others similarly situated to an open and unobstructed right of way in passing." (Id. at 905.) In other words, "the reservation of an easement . . . of an open and unobstructed street, way or thoroughfare did not reserve an absolutely unobstructed way." (Id. at 906.)

Since Plaintiffs have not shown that the step unreasonably interferes with their rights to the easement, it is unnecessary to consider Defendant's contention that the easement has been extinguished by adverse possession in the area covered by the step (see Spiegel v Ferraro, 73 NY2d 622, 625-26 [1989]; Koudellou v Sakalis, 29 AD3d 640, 641 [2d Dept 2006].) The Court notes, however, that conspicuously absent from Plaintiffs' submission in support of this motion is any evidence of when the step might have been constructed, and that neither of their demand letters to Defendant, dated, respectively, July 2, 2007 and April 9, 2008, even mentions the step.

As previously noted, the Verified Complaint seeks "[a]n Order requiring defendant . . . to remove the encroachments on the easement," compensatory and punitive damages, and sanctions. Assuming that Plaintiffs have sufficiently pleaded a cause of action for a permanent injunction, they are required to show a "violation of a right presently occurring, or threatened and imminent; that [they] [have] no adequate remedy at law; that serious and irreparable injury will result if the injunction is not granted; and that the equities are balanced in [their] favor." (See Elow v Svennigsen, 58 AD3d 674, 675 [2d Dept 2009].) "[E]quitable considerations must be weighed when an injunction is sought to remove an encroachment upon an easement." (Mylott v Sisca, 168 AD2d 852, 854 [3d Dept 1990]; see also Town of Fishkill v Turner, 60 AD3d 932, 933 [2d Dept 2009].) [*6]

Plaintiffs make no showing to support an injunction that Defendant remove the gate and fence that he has installed at the rear of his property. Indeed, Plaintiffs' submission establishes that, even without Defendant's gate and fence, the common driveway could not provide access to the rear of Plaintiffs' property because of the fencing on their property that boarders the strip to the property line and encloses the rear of the property. Plaintiffs assert that "[i]n 2006, when [their] daughter got married, [they] realized that [they] would need the backyard space to park one of [their] cars"; but "[b]efore [they] had a chance to turn their backyard into a parking space, defendant constructed the fence in the summer of 2007." (Affidavit of Richard Butts, ¶ 12.) Admittedly, Plaintiffs might remove the fencing in a matter of hours, but they have demonstrated a decided lack of urgency.

"There is precedent for vindicating a plaintiff's rights by recognizing their existence in a decree, but withholding enforcement of such rights to the full extent where it would be inequitable to do so." (O'Hara v Wallace, 52 AD2d 662, 663 [2d Dept 1976] ["no present necessity is shown for the unlimited use by plaintiffs of the full width of the roadway"]; see also Angiolillo v Town of Greenburgh, 21 AD3d 1101, 1104 [2d Dept 2005].) Since "the judgment in an equity action is properly based on the conditions prevailing at the time of trial" (see Maspeth Branch Realty, Inc. v Waldbaum, Inc., 20 AD2d 896, 899 [2d Dept 1964]), a mandatory injunction may yet be warranted.

In the meanwhile, Defendant now knows that his defense of abandonment has been rejected, and there is resulting potential for monetary consequences if the gate and fence are not removed. Plaintiffs' current application does not provide a basis for an award of damages for the encroachment of the gate and fence (see Zhuang Li Cai v Uddin, 58 AD3d 746, 747 [2d Dept 2009]), but that too could easily change.

Plaintiffs' motion is granted to the extent that it is determined that Defendant's gate and fence unreasonably encroach upon the easement granted by the 1955 Declaration of Easement, and Plaintiffs have not abandoned any rights to the easement. The motion is otherwise denied, with leave to renew with a sufficient showing that a remedy is appropriate.

August 3, 2009____________________

Jack M. Battaglia

Justice, Supreme Court