Hossain v A to Z Props.

[*1] Hossain v A to Z Props. 2006 NY Slip Op 51989(U) [13 Misc 3d 1225(A)] Decided on October 19, 2006 Supreme Court, Kings County Saitta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2006
Supreme Court, Kings County

Kazi Hossain, Plaintiff,

against

A to Z Properties, Leslie Wiggins, Michael J. Halberstam, Jay Kimmel, Richard Sanchez, and First United Mortgage Banking Corp., Defendants.



20303/05

Wayne P. Saitta, J.

Plaintiff moves this Court for an order enjoining Defendants from blocking easements on lots over which he claims easements by necessity. Defendants who are owners, prior owners, and mortgagees of two separate lots over which Plaintiff claims an easement, cross-move to dismiss Plaintiff's amended complaint.

On reading and filing the Order to Show Cause dated February 3, 2006, the Affirmation in support of Michael Cheatham Esq., dated January 31, 2006, the Affidavit of Kazi Hossain dated January 31, 2006, and the exhibits annexed thereto; the Notice of Cross Motion of A to Z Properties Inc., dated February 16, 2006, the Affirmation of Lee Wiederkehr, Esq. dated February 9, 2006, the Affidavit of Joseph Cohen dated February 9, 2006 and the exhibits annexed thereto; the Supplemental Summons and Amended Complaint dated May 16, 2006; the Supplemental Affidavit of Peter Becker, dated June 13, 2006, and the exhibits annexed thereto; the Reply Affirmation of Sanford Solny Esq., dated June 26, 2006, and the exhibits annexed thereto; the Supplemental Affirmation of John-Paul Iannace Esq. dated July 28, 2006, and the exhibits annexed thereto; the Notice of Cross Motion of A to Z Properties Inc., dated August 4 , 2006, the Affirmation of John-Paul Iannace Esq. dated July 28, 2006, and the exhibits annexed thereto; the Notice of Cross-Motion of First United Mortgage Banking Corp., dated August 22, 2006, the Affirmation of Charles Case Esq., dated August 22, 2006, and the exhibits annexed thereto; the Affirmation of Sanford Solny Esq., dated August 24, 2006, and the exhibit annexed thereto; after a hearing held before the court on September 25, 2006, and after argument of counsel and due deliberation thereon, and

Now, upon the motion of counsel, Plaintiff's motion for a preliminary injunction is denied and; the cross-motion of defendant A to Z Properties Inc. to dismiss as the A to Z Properties Inc. is granted; and the cross-motion of First United Mortgage Banking Corp., to [*2]dismiss as to First United and Sanchez is denied, for the reasons set forth below.

This case involves a interior lot owned by Plaintiff and two adjacent lots over which he claims an easement for access. The interior lot is located in the middle of Block 1375 in Kings County, and is listed on the City maps as lot 152. Lot 152 does not front on to any public street. One of the adjoining lots, lot 58, is owned by defendant A to Z properties Inc., (hereinafter "A to Z"). It is 10 feet wide and fronts onto Sterling Place. The other adjacent lot, lot 45, is owned by Richard Sanchez. It is 20 feet wide and fronts onto Ralph Avenue. Defendant First United Mortgage Banking Corp., (hereinafter "First United") is the mortgagee of lot 45.

Procedural History

Plaintiff originally brought this action against A to Z and the former owners of lot 58 claiming an easement by necessity over lot 58 to get access to lot 152, which is landlocked. Plaintiff moved by Order to Show Cause for an injunction barring the defendants from obstructing access over lot 58 from Sterling Place to lot 152. In opposition to Plaintiff's Order to Show Cause, defendant A to Z argued that whatever easement by necessity may have formerly existed over lot 58, ended when lot 152 was separated from lot 58 and joined with lot 45, which provided access from lot 152 to Ralph Avenue.

The Court on March 21, 2006 sua sponte granted Plaintiff leave to serve a supplemental summons and amended complaint on Ralph Sanchez and any subsequent owner of lot 45. The court later directed that First United, as a mortgagee of lot 45, also be joined.

The amended complaint alleged a claim of easement by necessity over lot 58 and an easement by necessity over lot 45. It also alleged easement by adverse possession over lot 58 and an easement by adverse possession over lot 45.

Easement by Adverse Possession

In addition to contesting the merits of Plaintiff's claims, A to Z and First United both oppose the claims for adverse possession on the ground that the court granted plaintiff permission only to add additional parties not to add new claims. This issue need not be reached however, because it is clear from the pleadings and moving papers that plaintiff has no colorable claim for an easement by adverse possession over either lot.

To establish an easement by adverse possession plaintiff must show the use was open, notorious, hostile and continuous for ten years. Doe v Axelrod, 73 NY2d 748, 536 NYS2d 44 (1988); Asche v Land and Building Known as 64-29 232nd Street, 12 AD3d 386, 784 NYS2d 577 (2nd Dept 2004). These elements must be shown by clear and convincing evidence. Katona v. Low, 226 AD2d 433, 641 NYS2d 62 (2nd Dept. 1996).

The ten year period of hostile use does not start to run until the two lots in question are severed from common ownership. Lot 45 was severed from lot 152, a little over six years ago, in May of 2000, therefore there could not have been 10 years of hostile use.

As to lot 58, defendant A to Z, produced an affidavit of Leslie Wiggins, who owned the lot from June 12, 2001 to June 3, 2004. Wiggins stated in his affidavit that for the period he owned the lot it was it was blocked off from Sterling Place by a wall and fence and that there was no access from the street to lot 152 over lot 58. Plaintiff produced no affidavit from any one with personal knowledge, or any other admissible evidence to show that anyone used lot 58 for access to lot 152 [*3]during the period Wiggins owned the lot. Nor did Plaintiff offer any affidavits or evidence to show that any owners of lot 152 used lot 58 to gain access to their lot, in a open and hostile fashion for any 10 year period since to two lots were severed from common ownership.

Since the is no merit to the claim of easement by adverse possession as to either lot, the court will dismiss that portion of the amended complaint which seeks to raise a claim of easement by adverse possession.

To the extent that the amended complaint could be read as alleging an implied easement by prior use over lot 58, that claim also would be without merit as plaintiff has produced no evidence to counter the affidavit of Wiggins which demonstrates that the alleged use has not been continuous since the severance of joint ownership.

Easement by Necessity

An easement by necessity is implied by operation of law when such easement is necessary for access to a piece of property. The elements of easement by necessity are: former common ownership, absolute necessity for the easement at the time of severance, and that the absolute necessity must to continue.

It is not enough to show common ownership, the necessity for the easement must exist at the time ownership of the lots is separated. US Cablevision Corp. v Theodoreu, 192 AD2d 835, 596 NYS2d 485 (3rd Dept. 1993).

The element of absolute necessity is meant literally, there can be no other way to get onto the lot from a public road except by the easement. Town of Pound Ridge v Golenbock, 264 AD2d 773, 695 NYS2d 388 (2nd Dept. 1999).

The easement by necessity exists only as long as the necessity for it exists. If circumstances change so that the easement is no longer necessary for access to the lot, then the easement by necessity ceases. Valicenti v Schultz, 27 Misc 2d 801, 209 NYS2d 33 (Su Ct Nassau 1960).

Prior to 1979, the interior lot 152 and lot 58 were in common ownership. Lot 58 is ten foot wide and provided access from Sterling Place to lot 152. At 10 feet wide it is not a buildable lot. All of the other lots the same a boundary with lot 152 are buildable lots at least 20 feet in width. From the physical layout of the bock and the size of the lots it is apparent that lot 58 had been originally used to provide access from the street to lot 152.

In 1979, neither lot 45, nor lot 57 were in common ownership with lot 152 . In 1979, the City of New York took title to lot 58, for back taxes, thus severing the common ownership of lots 58 and 152. In 1983, the City of New York took title to lots 57, 152, and 45 as well. At this point all four lots were contiguous and in common ownership. Whatever easement may have existed over lot 58 for the benefit of lot 152 lapsed when the came into common ownership. Will v Gates, 89 NY2d 778, 658 NYS2d 900 (1997); Town of Pound Ridge v Golenbock, 264 AD2d 773, 695 NYS2d 388 (2nd Dept. 1999).

In 1987, the City of New York sold lots 57 and 58 to Benjamin Lovell, severing again the common ownership of lots 58 and 152. However, no easement over lot 58 was necessary to access lot 152 at this time, because lot 152 was still in common ownership with lot 45 and it could be reached from Ralph Avenue through lot 45

In 1988, the City sold lots 152 and 45 together to Edward Lundberg and street access to lot 152 was still possible through lot 45. No evidence was adduced as to whether the was a house on lot 45 during the period of Lundberg's common ownership. However, this would not have mattered while the lots were in common ownership, as Lundberg would have had access even through a [*4]building had it existed on lot 45.

In 2000, the plaintiff Hossain purchased lot 45 at a tax lien foreclosure, severing the common ownership of lot 152 and 45. According to Hossain, at the time he purchased lot 45 there was no building on the lot. At this point Hossain purchased only lot 45 which he later sold in 2002, approximately three years before he purchased lot 152 in 2005. Hossain never owned both lots 152 and 45 at the same time. The fact that he had owned lot 45 for a short period predating his ownership of lot 152, while somewhat confusing, is of no material significance.

At the time Hossain purchased lot 45 it provided the only means of access from a public street to lot 152. An easement by necessity could not be imposed on lot 58 at that time because common ownership with lot 152 had been severed 13 years earlier, and at the time it was severed access through lot 58 was not necessary because lot 45 was still in common ownership with lot 152.

Since there was absolutely no other means of access to lot 152 at the time ownership was separated from lot 45, an easement by necessity must be implied over lot 45.

Since the severance of the common ownership of lot 152 and 45 in 2000, the necessity for access through lot 45 has neither ceased nor abated.

The fact that subsequent owners may not have had actual notice of this implied easement is not alone a basis for extinguishing the easement.

To be valid against a subsequent owner of an subordinate estate, the use of the subordinate estate be plainly and physically apparent on reasonable inspection and that the easement must affect the value of the estate benefitted and be strictly necessary to the reasonable use of that estate Silvercrest v. St. Christopher-Ottile, 194 AD2d 720, 600 NYS2d 95, (2nd Dept. 1993) Ryerson Tower v. St. James Towers, 131 AD2d 744, 517 NYS2d 48 (2nd Dept. 1987).

This case does not involve a hidden or concealed easement such as an underground sewer pipe. The fact that lot 152 was an interior lot that would require access through an adjoining lot was open and obvious. That together with the common ownership of lot 45 with lot 152 was sufficient to put subsequent purchasers on inquiry notice that there was a potential easement for the benefit of the interior lot that needed to be investigated. Bogart v. Roven, 8 AD3d 600, 780 NYS2d 355 (2nd Dept 2004.) Although not immediately apparent, the easement by necessity could have been confirmed by a search of the title chains of the lots adjoining lot 152.

While a purchaser is generally not charged with notice beyond the title chain of their own property, Witter v. Taggart, 78 NY2d 234, 573 NYS2d 146 (1991), the easement in this case was discoverable from the landlocked nature of lot 152 and the prior common ownership of the two lots. The search of the title chains of the other adjoining lots would be necessary not to establish to easement over lot 45, but only to determine if the easement terminated because an alternate means of access existed over a different lot.

Remedy

Even though the moving papers and the exhibits taken together provide clear and convincing evidence of an easement by necessity over lot 45 for the benefit of lot 152, the injunction sought by plaintiff would not be appropriate in this case.

Plaintiff seeks an injunction prohibiting Defendants from encumbering or blocking access to lot 152 over their lots. As explained above, whatever easement may have existed over lot 58 terminated when the City sold lot 58 together with lot 57 to Lovell in 1987, so there is no basis for [*5]an injunction against defendant A to Z.

As to lot 45, to obtain a preliminary injunction, the Plaintiff must show in addition to a likelihood of success on the merits, that he has no adequate remedy at law and that the equities of granting the injunction as opposed to not granting it weigh in his favor.

In addition to the general standard for injunctions, the courts have always had the authority to award monetary damages instead of injunctive relief, in cases involving encumbrances of real property or easements. In fact, RPAPL §871 specifically states that in an action for the removal of a structure that encroaches on another's estate in land, the court retains the power to award damages in an appropriate case in lieu of an injunction.

Although it is true that without injunctive relief Plaintiff will be unable to have access to his property, injunctive relief is not appropriate in this case for a number of reasons.

First, there is an attached multiple dwelling covering lot 45. Significantly, this multiple dwelling was constructed before plaintiff purchased lot 152. Although the exact contours of the claimed easement have not been pled, it is apparent that to provide access over a 20 foot wide lot, the existing attached multiple dwelling would have to be demolished.

The granting of a mandatory injunction is an extraordinary remedy and the court must weigh the conflicting considerations of benefit to the party seeking the injunction and harm to the party subject to the injunction which would follow the granting of such a drastic remedy Sunrise Plaza Assoc. v International Summit Equities Corp., 288 AD2d 300, 733 NYS2d 443 (2nd Dept. 2001).

Where the removal or destruction of a building is the object of an injunction, caution will be exercised in granting such relief, and the courts generally will not do so unless substantial benefit is to be gained by the party seeking the injunction. Sunrise Plaza Assoc. v International Summit Equities Corp., supra ; Maspeth Branch Realty v Waldbaum, Inc., 20 AD2d 896, 249 NYS2d 32 (2nd Dept. 1964).Even if the easement were enforced, lot 152 would not a buildable lot. It is not a buildable lot because even with an easement over lot 45, no part of lot 152 would front a public street. The Administrative Code of the City of New York, § 27-291, requires the every building shall have at least eight per cent of its total perimeter fronting directly on a street, or a frontage space at least thirty feet wide. Thus, even with an easement over lot 45, Plaintiff would not be able to construct a building on his interior lot.

Given that plaintiff purchased the lot after a house had already been built blocking his claimed easement, and he would still not be able to build on his lot even if the house were demolished, an mandatory injunction is not appropriate. Plaintiff can be adequately compensated by monetary damages.

Monetary damages are measured as the difference between the value of the property with the easement and the value of the property without the easement. While the $22,000 that Plaintiff paid for the property in 2005 is some measure of the value of Plaintiff's lot, with an easement; it is not determinative. The diminution of the value of the property caused by the loss of the easement, if any, will have to be determined at trial.

WHEREFORE, Plaintiff's Order to Show Cause for a preliminary injunction is denied; defendant A to Z's cross-motion for summary judgment dismissing the amended complaint as against it, is granted;

and defendant First United's cross-motion for summary judgment is denied as to the claim of [*6]easement by necessity over lot 45 and granted as to the claim of easement by adverse possession over lot 45.

This constitutes the decision and order of the Court.

ENTER

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J.S.C.