Riark, LLC v Dacosto

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[*1] Riark, LLC v Dacosto 2007 NY Slip Op 50442(U) [14 Misc 3d 1240(A)] Decided on March 1, 2007 Supreme Court, Nassau County Austin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 21, 2007; it will not be published in the printed Official Reports.

Decided on March 1, 2007
Supreme Court, Nassau County

Riark, LLC, Plaintiff,


Robert J. Dacosto a/k/a Robert J. Dacosta, Defendants, Robert J. Dacosta, Plaintiff, Mohinder Singh, Defendant.

Robert J. Dacosta, Plaintiff,


Mohinder Singh, Defendant.



Law Offices of Cory J. Rosenbaum, P.C.

350 Fifth Avenue - Suite 4400

New York, New York 10118


Law Office of James F. O'Brien

500 North Broadway, Suite 105

Jericho, New York 11753

Leonard B. Austin, J.

Plaintiff, Riark, LLC ("Riark") moves for summary judgment declaring that a 20 year lease held by Defendant to eight parking spaces was conveyed to Riark when Riark purchased real property from Defendant. Defendant Robert J. DaCosto a/k/a Robert J. DaCosta ("DaCosta") cross-moves for summary judgment dismissing the complaint.


On October 18, 2004, DaCosta conveyed to Riark real property known as 94-102 North Broadway, 29 William Street and 31 William Street, Hicksville, New York. (collectively "the Property"). For a long period of time prior thereto, Riark had been the tenant in the Property at which it operated a novelty store.

Riark seeks to obtain the right to use 8 parking spaces ("Parking Spaces") leased to DaCosta at the neighboring property, 25 William Street. Riark asserts it acquired DaCosta's rights to the Parking Spaces when it purchased the Property.

DaCosta's rights to the Parking Spaces arises from an Agreement of Lease dated December 2000 that was entered into as part of the settlement of an action brought by Hicksville Properties, LLC ("Properties") against Evelyn Wollenhaupt ("Wollenhaupt") and DaCosta relating to 25 William Street. Pursuant to the Agreement of Lease Wollenhaupt and DaCosta conveyed their interest in 25 William Street to Properties and Properties leased back the Parking Spaces that are the subject of this litigation to DaCosta for a period of twenty years from the date of the deed. The lease gives DaCosta and his tenants, subtenants, agents, employees, invitees or licensees the right to access over and across 25 William Street to the Parking Spaces. [*2]

Under the terms of the contract of sale relating to the Property (¶ 1.1.2), DaCosta was to convey to Riark "[t]he buildings, parking area, improvements, personalty located on the property and all other tangible and intangible interest now situated on or relating to the Land ( the Improvements')." In the amendment of the contract this language was only slightly modified. Under ¶1.1.3, . . . appurtenances belonging to or inuring to the benefit of seller and pertaining to the Land, along with all leases licences and/or other occupancy agreements . . . " (Emphasis added) were included. The Parking Spaces were not.

Neither the contract of sale of the Property nor the deed conveying it mentions the subject Parking Spaces as they are not part of the property conveyed by DaCosta. DaCosta has not executed an assignment of lease whereby he assigned his leasehold in the Parking Spaces to Riark.

Riark asserts the Parking Spaces are appurtenant to the Property. Therefore,

Riark acquired DaCosta's interest in the Parking Spaces when it took title to the Property.


Riark bases its claim to the Parking Spaces upon the language in the deed by which it acquired title to The Property which provides:

"Together with the appurtenances and all the estate and rights of the party of the first part [DaCosta] in and to said premises."

This clause must be given the statutory interpretation contained in Real Property Law §255. This clause indicates that grantor is conveying to grantee "...all the estate, right, title, interest...in and to the said granted premises and every part and parcel thereof." The grantee receives whatever rights the grantor had in the specific property being conveyed including all easements that run with the land, consistent with ¶¶ 1.1.2 and 1.1.3 of the Contract of Sale. See, Patouillet v. State, 39 AD2d 1012 (4th Dept.

1972); and Schwab v. Whitmore, Rauber and Vicinus Co., Inc., 245 App. Div. 174 (4th Dept. 1935). See also, 43A NY Jur2d Deeds §235; and Warren's Weed New York Real Property, Deeds §37.52[1].

The Parking Spaces are not part of the property that was conveyed by DaCosta to Riark under the contract of sale. DaCosta does not have an easement to use the Parking Spaces. Rather, he has a separate leasehold relating to the Parking Spaces which are located on a parcel which was not subject to the contract of sale. Therefore, the language in the deed did not transfer, and could not have transferred, DaCosta's leasehold to the Parking Spaces to Riark.

"Except for necessities, appurtenances' include only that which is contained within the boundaries of the land demised." Van Roo v. Van Roo, 268 App. Div. 170, 174 (4th Dept. 1944). "Where the property is conveyed by metes and bounds with the appurtenances thereunto belonging' nothing passes outside the limits of the grant by the use of the word appurtenances' except such incorporeal easements or rights or privileges as are strictly necessary and essential to [*3]the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement. (Citation omitted)." Root v. Conkling, 199 App. Div. 90, 93 (3rd Dept. 1921). See, 43A NY Jur 2d Deeds §234; and Warren's Weed New York Real Property, Deeds §37.52[1][2].

Further, the contract of sale must be viewed in the context of the rules of contract interpretation which provides that a clear and complete written agreement should be enforced in accordance with its terms. South Road Assocs., LLC v. International Business Machines Corp., 4 NY3d 272 (2005); Greenfield v. Philles Records, Inc., 98 NY2d 562 (2002); and W.W.W. Assoc. v. Giancontieri, 77 NY2d 157 (1990). The court should determine the intent of the parties from the language of the agreement. Greenfield v. Philles Records, Inc., supra.

Terms of a contract are to be interpreted in accordance with their plain meaning. Computer Assoc. International, Inc. v. U.S. Balloon Mfg. Co., Inc., 10 AD3d 699 (2nd Dept. 2004); and Tikotzky v. New York City Transit Auth., 286 AD2d 493 (2nd Dept. 2001).

The court is to give "...practical interpretation to the language employed and the parties reasonable expectations." Slamow v. Del Col, 174 AD2d 725, 726 (2nd Dept. 1991), aff'd., 79 NY2d 1016 (1992). See also, AFBT-ll, LLC v. Country Village on Mooney Pond, Inc., 305 AD2d 340 (2nd Dept. 2003); and Del Vecchio v. Cohen, 299 AD2d 426 (2nd Dept. 2001).

Significantly, the court may not add or delete provisions of an agreement under the guise of interpretation nor may the court interpret the language of an agreement in such a way as would be contrary to the intent of the parties. Petracca v. Petracca, 302

AD2d 576 (2nd Dept. 2003); and Tikptzky v. New York Transit Auth., supra. Despite Riark's arguments to the contrary, its approach would inappropriately add an unintended term to the contract; to wit: the right to the Parking Spaces.

The intention of the parties was clearly manifested as to that which was specifically included in their contract. In the Amendment to Purchase and Sale Agreement, ¶ 1.1.2 describing what was included with the premises conveyed:

"The buildings, parking areas, improvements, personalty, located on the Property and all other tangible and intangible interest now situated on or related to the Lands ( Improvements')." (Emphasis added)

There has been no showing as to how DaCosta's leasehold of the Parking Spaces was included, or intended to be included, from this contract language; especially since "parking areas" is specifically addressed.

Since the Parking Spaces are not part of the premises conveyed by DaCosta to Riark and Riark has failed to establish the Parking Spaces are strictly necessary and essential to its use of the property, Riark has failed to establish a prima facie entitlement to judgment as a matter of law. DaCosta has. See, Winegrad v. New York University Medical Center, 64 NY2d 851 (1985); and Zuckerman v. City of New York, 49 NY2d 557 (1980). Thus, summary judgment dismissing this action must be granted.

Accordingly, it is,

ORDERED, that Plaintiff's motion for summary judgment is denied: and it is further,

ORDERED, that Defendant's cross-motion for summary judgment is granted and the complaint is dismissed.

This constitutes the decision and order of this Court.

Dated: Mineola, NY_____________________________

March 1, 2007Hon. LEONARD B. AUSTIN, J.S.C.