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DOCKET NO. A-3203-08T33203-08T3


a New Jersey Limited Liability






Jersey Corporation,





Submitted January 21, 2010 - Decided

Before Judges Sabatino and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. C-83-07.

F. Terrance Perna, attorney for appellant/cross-respondent.

Anthony Fiorello, attorney for respondent/cross-appellant (Patrick P. Zaretski, on the brief).


This appeal concerns a dispute over the right to use six paved parking spaces. Plaintiff, 1952 Union Valley Road, LLC, seeks reversal of a final judgment of the Chancery Division dated January 29, 2009. The final judgment granted the owner of defendant, Adelo Corporation ("Adelo"), an easement that entitles him to make use of six parking spaces located on plaintiff's property. Adelo cross-appeals that aspect of the court's decision that made the easement personal to Adelo's sole shareholder, John Aiello.

Plaintiff is a limited liability corporation wholly owned by Lewis Qarmout ("Lewis"). Lewis and his brother Elias Qarmout ("Elias") formerly operated a convenience store together in West Milford. The convenience store is located on Lot 1 of Block 3601.

During the time that the brothers operated the convenience store together, Elias and his wife had title to Lot 1. Apparently, during that period of time, in or about 1995, Elias was approached by Aiello, the owner and sole shareholder of Adelo. Adelo owns Lot 2, adjoining Lot 1 at the corner of Union Valley Road and Stainsby Road, which Adelo uses as overflow parking for its shopping center across the street.

According to his trial testimony, Aiello asked Elias if he could use a portion of Lot 1 for overflow parking for Adelo's shopping center. The area in question is approximately forty to fifty feet in length and approximately forty feet wide. The proofs showed that Elias, who did not testify at trial, reached an oral agreement for Aiello to use that portion of Lot 1 for parking. Apparently, the two men also had an expectation that at some point, if Lot 1 was further developed, there might be some shared usage of the area for parking to benefit both the shopping center and the convenience store. Aiello, meanwhile, allegedly agreed not to attempt to acquire Lot 3, which is adjacent to Lots 1 and 2, and was then owned by a third party.

Based on the alleged oral understanding, Aiello cleared and paved the area for the parking spots, and the six spots were striped. The clearing and paving activity took about seven non-consecutive days, and, as the trial court found, was observed by Lewis as it took place. Adelo made use of the parking area for about nine years. During that time, Aiello performed weeding and other maintenance.

Adelo allegedly spent about $4,000 on improvements and maintenance relating to the parking spaces. However, Adelo made no monetary payments to Elias for the use of the spaces, and the company did not contribute to taxes or insurance on the property.

Eventually, Elias had a falling out with Lewis and began to have financial problems. Lot 1 went into foreclosure. Lewis, through another corporation, purchased Lot 1 at a sheriff's sale. The property was then transferred to plaintiff, 1952 Union Valley Road, LLC.

Subsequently, in 2000, Lewis bought Lot 3 from the heirs to an estate, for the purposes of a future possible expansion of his convenience store business. The disputed parking area is sandwiched between Lot 3 and Lot 1. Eventually, in 2004, Lewis objected to Adelo's continued use of the parking area. According to his trial testimony, Lewis wanted to use the disputed portion of Lot 1 to further develop his business, after purchasing the contiguous Lot 3. He claims to have since abandoned this plan.

Lewis originally placed rocks to block access to the parking spaces. The rocks were removed after Adelo obtained injunctive relief.

The dispute over the right to use the parking spaces went to litigation three times. The first two lawsuits, both instituted by Adelo, were dismissed without prejudice.

Finally, in the present lawsuit, 1952 Union Valley Road brought a quiet title action in the Chancery Division against Adelo. Plaintiff argued that Adelo has no legal right to continue to use the parking spaces. In response, Adelo contended that it had such an enforceable right, invoking various theories for the recognition of an easement.

After hearing five days of extensive testimony and considering written summations from counsel, Chancery Division Judge McVeigh, issued a thirteen-page written opinion. Judge McVeigh concluded that, although there was no written contract between Elias and Aiello, there was clear and convincing proof of an enforceable agreement sufficient to overcome the Statute of Frauds. See N.J.S.A. 25:1-13b.

Judge McVeigh specifically found Lewis' testimony was "not credible." By contrast, the judge adopted Aiello's testimony concerning the oral understandings that had been reached between him and Elias, and found "no reason to doubt" Aiello's testimony that he was unaware at the time that Elias was not the owner of Lot 1 or an officer of the corporation that operated the convenience store.

Although Judge McVeigh rejected Adelo's contention that an easement had been created here by express conveyance, implication, or prescription, she nonetheless found that there was an easement created by estoppel. She found that the open activity of Aiello in paving and clearing the property and maintaining it would have been known to Lewis for many years, but that he did nothing about it.

However, as a matter of equity, Judge McVeigh concluded that the easement by estoppel was personal to Aiello, and that the easement would lapse upon Aiello's death or upon his transfer of his interest in Adelo.

Plaintiff appeals the trial court's finding of an enforceable easement. In particular, plaintiff argues that the court erred in (1) not finding Adelo's claims barred by the statute of frauds; (2) rejecting plaintiff's argument that defendant's right to use the parking spaces comprised no more than a revocable license; (3) recognizing the creation of an easement by estoppel; and (4) declining to void the arrangement to use the spaces for lack of consideration.

Adelo cross-appeals the judge's subsidiary finding that the easement was personal to Aiello, arguing that the court-imposed temporal restriction was arbitrary and overly burdensome.

We have fully considered the respective and competing arguments raised by the parties, in light of the record as a whole and the applicable law. Having done so, we affirm the trial court's final judgment in all respects, essentially for the detailed reasons expressed in Judge McVeigh's written decision. Only a few points are worth underscoring.

We do not disturb the factual findings of the trial judge in this bench trial, particularly those assessing the credibility of the parties. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Based upon those findings including the pivotal finding that Lewis was well aware of defendant's clearing and maintenance of the parking spaces for nearly a decade and did nothing about it the proofs are ample to support the recognition of an easement by estoppel. See, e.g., Ellen T. Quigley, Inc. v. Miller Family Farms, Inc., 266 N.J. Super. 283, 295-96 (App. Div. 1993). The court was not obligated to classify the arrangement as one of merely a revocable license, as the facts supported a stronger claim of right.

Moreover, there was adequate consideration for the mutual understanding between the parties, as defendant provided valuable clearing and enhancements to the parking area on plaintiff's land and also forbore from acquiring Lot 3 when that nearby parcel became available for sale. The easement therefore arose out of a reciprocal commitment to provide and receive future benefits. Oscar v. Simeonidis, 352 N.J. Super. 476, 485 (App. Div. 2002).

As Judge McVeigh correctly recognized, the Statute of Frauds does not defeat defendant's claims pertaining to the real estate because there was at least part performance of the parties' agreement. See N.J.S.A. 25:1-13b, Lahue v. Pio Costa, 263 N.J. Super. 575, 599 (App. Div.), certif. denied, 134 N.J. 477 (1993).

Lastly, we reject defendant's claim on the cross-appeal that the trial judge misapplied her equitable discretion in limiting the easement to Aiello personally. The judge had ample reason to not grant into perpetuity for defendant's successors-in-title an easement that arose, in essence, out of oral discussions between Elias and Aiello, and which largely grew out of their personal relationship. Although we can envision other equitable remedies that could have been fashioned here instead, we cannot say that the remedy selected by the trial judge was manifestly unfair or inconsistent with the proofs.


The record suggests that the parking spaces has been the subject of some inquiry by the local zoning authority. While Adelo's continued use of the parking area may be subject to local zoning approval, the trial judge did not reach this question of zoning ordinance compliance and neither do we.





March 30, 2010