Guzzone v Brandariz

[*1] Guzzone v Brandariz 2007 NY Slip Op 51521(U) [16 Misc 3d 1120(A)] Decided on July 31, 2007 Supreme Court, Kings County Dabiri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 31, 2007
Supreme Court, Kings County

Alice Guzzone, Plaintiff(s),

against

Linda Duffy Brandariz, MARK BRANDARIZ, CLIFFORD E. HARKNESS, JR., ANTHONY PELLEGRINO, CARMEL PELLEGRINO, and SUSAN M. FEINGOLD, , Defendant(s)



27803/06

Gloria M. Dabiri, J.

By Order to Show Cause, the defendants, adjoining landowners of residential lots, seek partial summary judgment (a) dismissing plaintiff Alice Guzzone's first cause of action and (b) granting defendants summary judgment on their counterclaims. By counterclaim, the defendants seek, first, an injunction, directing that plaintiff remove air-conditioning (AC) units and steel stanchion which encroach upon an easement area at the rear of the parties' properties and, second, a permanent injunction against plaintiff's [*2]interference with the defendants' rights under the express easement and under any easement rights they have gained by prescriptive use.

The plaintiff Alice Guzzone cross-moves for summary judgment dismissing the defendants' counterclaims and for summary judgment on her first and second causes of action. Plaintiff's complaint seeks a judgment against the defendants: first, declaring the defendants' easement and right of way cancelled and extinguished; and, second, in the sum of $35,000.00 plus interest, costs and disbursements, as reimbursement for the cost of repairs to the easement area.

Statement of Facts

On December 14, 1967 Glendale Homes, Inc. (the Company), who at that time owned the servient property located at 292 Court Street, Brooklyn, New York, granted an easement for the benefit of four lots located at the rear of 292 Court Street and now known as 41-47 Tompkins Place. Plaintiff Alice Guzzone obtained title to 292 Court Street in 1976. The dominant properties, at 41 Tompkins Place, 43 Tompkins Place, 45 Tompkins Place and 47 Tompkins Place, ultimately, were deeded to the defendants. The easement area consists of an eight-foot wide driveway running east from Tompkins Place along side the 47 Tompkins Place lot, and a connecting "common driveway" or "alleyway" running north at the rear of both the plaintiff's and the defendants' properties. This alleyway consists of the rearmost seventeen feet of the plaintiff's lot and the rearmost eight-feet of each of the defendants' lots. The easement creates a right of way from Tompkins Place to the rear of the parties' properties. Each deed references and is made subject to the benefits and burdens of the Declaration of Easement of December 14, 1967, as amended on May 14, 1968. The Declaration of Easement contains a detailed metes and bounds description of the easement area, and provides in relevant part:

". . . the Company does hereby certify and declare that it has created and does hereby create, locate and establish easements or right of way for the exclusive benefit of the owners (Company included) and mortgagees of the respective lots, parcels and buildings erected adjacent to said right of way within the premises above described as follows . . . It is hereby further certified and declared by the Company, that said rights of way will be used as a common driveway for the purpose of ingress and egress for pleasure automobiles only from the easterly side of Tompkins Place to the rear of said premises as above described adjacent to said rights of way and the same to be maintained and left open and unobstructed by the respective owners of the lots of land . . . with the further provision and condition that in the event that any said owner does not maintain and leave open and unobstructed (except parking of one pleasure vehicle within the 8 foot strip of the rear of each lot) said common driveway immediately adjacent to the lot then owned by him, then and in that event, the right to his enjoyment of the privilege of this easement shall terminate.

***

It is further certified and declared that the right of way is limited to the owner of the lot adjacent to the right of way and is also

limited to one private pleasure vehicle to each lot adjacent to the right of way." (Emphasis added)

The easement was created "for the exclusive benefit of the owners," of the dominant and servient properties, and is to be "used as a common driveway for the purpose of ingress and egress for pleasure automobiles." Further, the easement area is "to be left open and unobstructed," "except [for] parking of one pleasure vehicle within the 8 foot strip of the rear of each [dominant] lot."

On or about July 28, 2006, the plaintiff had delivered to the back of her property

three commercial air-conditioning units, each measuring approximately 6 feet in depth by 3½ feet in width and 2½ feet in height. The AC units and steel posts fronting each unit, were fully installed at the rear of plaintiff's property on or about October 19, 2006. The AC units extend approximately six feet into the easternly portion of the alleyway or common driveway.

Defendants Susan Feingold, Linda Duffy Brandariz, Carmel Pellegrino and Clifford E. Harkness, Jr. each affirm that the AC units have interfered with their use and enjoyment of the alleyway and pose a dangerous condition. The defendants contend that the narrowness of the driveway from Tompkins Place requires that a driver turn her vehicle around in the rear alleyway in order to exit. The defendants maintain that the AC units and steel stanchions have reduced the width of the alleyway making it difficult to turn vehicles in this space and requiring more than a three-point turn to complete the maneuver. They contend that the required maneuvering is made more difficult and dangerous by slippery winter weather conditions. The defendants do not claim that they are unable to use the easement for its intended purposes, but that their use and enjoyment of the easement has been diminished by the plaintiff's actions.

Although the Declaration of Easement requires that the defendants park their vehicles within the eight-foot strip at the rear of their lots, several of the defendants claim that they have parked their vehicles in the northernmost portion of the alleyway openly, continuously, notoriously and under claim of right. These defendants, Duffy Brandariz and Pellegrino, maintain that they never sought or received permission from the plaintiff, or prior owners of the servient property, to park in the alleyway. Defendant Linda Duffy Brandariz, owner of 47 Tompkins Place, affirms that she has parked her vehicle in the northernmost part of the alleyway since she took ownership in 1984. Defendant Carmel Pellegrino, owner of 43 Tompkins Place, affirms that she has parked her vehicle in the northernmost part of the alleyway since 1967. Defendant Clifford E. Harkness, Jr., owner of 45 Tompkins Place, affirms that he does not park within the eight-foot strip, but rather parks his vehicle in his own backyard and has been doing so since 1968. Defendant Susan M. Feingold, owner of 41 Tompkins Place, affirms that since 1977 she has parked her vehicle within the designated eight-foot strip, at the rear of her property, in the northwest corner of the easement area. Defendants also provide a Map of Survey of the properties and easement area, dated December 6, 2006. [*3]

In opposition to defendants' motion and in support of her cross-motion, plaintiff submits the affidavits of managing agent Nicholas Guzzone, Sr. and of architect Tom Vandenbout. Mr. Guzzone affirms that in 1967 he built the four, two-family homes now owned by the defendants, and that as part of the construction he provided parking for one vehicle in the rear of each lot. In order to access the rear of each lot for parking, an easement was granted "to the driveway across the easement for ingress and egress." Mr. Guzzone affirms that he has witnessed the "continuous and absolute abuse of the terms and conditions of the easement over the years." Specifically, the owners of 41 Tompkins Place (Feingold) and 43 Tompkins Place (Pelligrino) have enclosed their backyards with fences and turned their rear yards into gardens, thereby abandoning their rights to the eight-foot parking spaces at the rear of their lots. Mr. Guzzone avers that the easement alleyway is no longer used simply for ingress and egress from the easement parking spaces, but that the defendants have turned the easement alleyway into a parking lot. Moreover, Mr. Guzzone contends, the defendants have also violated the terms of the easement by parking more than one vehicle in the easement area and by renting parking space to non-residents of the Tompkins Place properties. Mr. Guzzone states that on occasion he has parked his own vehicle in the easement area, without complaint from the defendants.

Mr. Guzzone also maintains that the defendants have failed to keep the easement area in good repair in that the pavement is cracking and overrun with grass. He argues that the defendants' failure to maintain the easement area, despite his request that they do so, constitutes a violation of the terms of the easement and warrants cancellation of the easement.

With respect to the installation of the AC units at the rear of plaintiff's property, Mr. Guzzone affirms that the property is commercial real estate which has been leased to the City of New York for use as a day care center. He affirms that, as the landlord, plaintiff was responsible for replacing the antiquated and non-functioning AC system. Mr. Guzzone, therefore, retained architect Tom Vandenbout to draft plans which would allow for placement of the units at the rear of the property. The plans prepared by Mr. Vandenbout were approved by the Building Department of the City of New York. Although the AC units protrude six feet into the easement area, Mr. Guzzone argues that the units do not interfere with turning and maneuvering vehicles within the area. In this regard, he maintains that notwithstanding the presence of an emergency staircase which protrudes six feet into the southeast corner of the easement area, the defendants have been able to use the alleyway for ingress and egress for almost thirty years. Mr. Guzzone maintains that if the defendants used the easement as intended, they would have no difficulty turning vehicles within the alleyway.

Tom Vandenbout, a licensed architect, affirms that he was hired to design a layout for the AC units which would not interfere with the defendants' right of way. Mr. Vandenbout notes that at the north end of the easement alleyway, where vehicles typically [*4]turn around, the dimensions remain twenty-five (25') feet wide by thirty-eight and three-quarters (38.75') feet long. He indicates that the AC units reduce the east end of the alleyway to eighteen and one half (18.5') feet in width, and that this also is sufficient space for a standard automobile, measuring six and one-half feet in width and requiring fifteen feet to make a three-point turn, to do so. He notes that defendants Harkness and Brandariz, who park in designated parking areas at the end of their yards, have eighteen and one-half feet to maneuver. Vandenbout also reports the results of a test performed by him in October 2006, which demonstrated the ability of both a car and van to move around a parked car in the rear easement area or alleyway. In his opinion, based upon the measurements of the unrestricted easement area, the AC units do not substantially interfere with the defendants' ingress and egress to their eight-foot parking spaces.

The Right Of Way

Defendants move for summary judgment on their counterclaims for injunctive relief, directing removal of the AC units, and for a permanent injunction prohibiting future interference with the easement by plaintiff. Plaintiff cross-moves for summary judgment dismissing both counterclaims.

"[E]xpress easements are defined by the intent, or object, of the parties," (Lewis v Young, 92 NY2d 443, 449 [1998], citing Bakeman v Talbot, 31 NY 366, 370 [1865]), "as manifested by the language of the grant" (Dowd v Ahr, 78 NY2d 469, 473 [1991]; Henrich v Phazar Antenna Corp. 33 AD3d 864, 867 [2006] ["the best evidence of what the parties to a written agreement intend is what they say in their writing"]). The plain language of the easement in this case expresses the intent of the grantor to permit the owners of the Tompkins Place properties a right of way to the rear portions of their properties for the purpose of parking one vehicle per lot. "As a rule, where 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 [the] physical passageway itself, that is granted to the easement holder" (Lewis, 92 NY2d at 449; see also Bakeman, 31 NY at 371; Grafton v Moir, 130 NY 465, 470-2 [1892]). Thus, a right of way along a private road does not give the easement holder a right or assurance "that the road shall be in no respect altered or the width decreased, for his right does not entitle him to the use of the whole of the road . . . but is merely a right to pass" (Grafton, 130 NY at 472), and "such rights as [are] incident or necessary to the enjoyment of such right of passage" (Herman v Roberts, 119 NY 37, 42 [1890]).

The servient landowner retains a right to use the easement area so long as it is not inconsistent with the grantees' use of the easement for its intended purpose (Herman, 119 NY at 42-3; Dillon v Moore, 270 A.D. 79, 82 [1945], aff'd, 296 NY 561 [1946]; Wilson v Palmer, 229 AD2d 647 [1996]; Sordi v Adenbaum, 143 AD2d 898 [1988]). "[I]n the absence of a demonstrated intent to provide otherwise, a landowner burdened by an [*5]express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired" (Lewis, 92 NY2d at 449; Herman, 119 NY at 43; Andrews v Cohen, 221 NY 148, 155 [1917] [owner of the servient tenement has a right to cover the right of way so long as such action does not render use of the right of way impracticable or unreasonably inconvenient]; Fairfield Properties, Inc. v Pepe, 56 AD2d 883 [1977] [decrease in width of roadway did not "materially interfere" with easement]; Dillon v Moore, 270 A.D. at 83 [narrowing of alleyway by structure rendered use of right of way "somewhat more inconvenient," but was not an invasion of right to easement]). "As a matter of policy, affording the [servient] landowner this unilateral, but limited, authority to alter a right of way strikes a balance between the landowner's right to use and enjoy the property and the easement holder's right of ingress and egress" (Lewis v Young, 92 NY2d at 450).

"The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact . . .'" (JMD Holding Corp. v Cong. Fin. Corp., 4 NY3d 373, 384 [2005], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; CPLR 3212). Here, it has not been demonstrated that the grantor intended to limit its right to use of its land within the easement area. To the contrary, the Declaration, as amended, merely describes the property over which the grantees may have parking and a right of way, rather than restricts the dimensions of the easement [see Fairfield Properties, Inc. v Pepe, 56 AD2d at 883]). Moreover, the grantor expressly reserved use of the easement or right of way "for the exclusive benefit of the owners (Company included) and mortgagees of the respective lots." Further, while the defendants affirm that the AC units interfere with their use and enjoyment of the easement, they admit that they are able to travel on the right of way, to use it for ingress and egress and to turn around. The architect responsible for installation of the AC units opines that the AC units do not substantially interfere with the ability to turn around or to otherwise use the alleyway. The defendants do not dispute these findings by the plaintiff's architect (see J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d 548, 551 [2005]).

Thus, the defendants fail to establish that this encroachment "frustrates" the intent of the original grantor, "unreasonably" interferes with the right of way or increases the burden on them as easement holders, or substantially "lessens the usefulness" of the right of way (Lewis, 92 NY2d at 452; Hoeffner v John F. Frank, Inc., 302 AD2d 428 [2003]; see also Rebentisch v Donovan, 21 AD3d 542 [2005]). A servient owner will not be required to remove a structure encroaching along the right of way so long as enough space remains for the intended purpose (Lucas v Kandis, 303 AD2d 649, 649-650 [2003]; see also Herman, 119 NY at 45; Dillon, 270 A.D. at 83; 49 NY Jur. Easements and Licenses in Real Property §137). Therefore, the portion of defendants' motion as seeks summary judgment on their first counterclaim is denied and the plaintiff's cross-motion for summary judgment dismissing defendants' first counterclaim is granted.

[*6]Cancellation of the Easement and Prescriptive Use

The Declaration of Easement expressly provides that "in the event that any said owner does not maintain and leave open and unobstructed (except parking of one pleasure vehicle within the 8 foot strip of the rear of each lot) said common driveway immediately adjacent to the lot then owned by him, then and in that event, the right to his enjoyment of the privilege of this easement shall terminate." In interpreting an instrument creating an interest in real property courts must construe the instrument according to the intent of the parties, as far as that intent can be discerned from the entire instrument (R.P.L. § 240 [3]; Circuit City Stores, Inc. v Muss, 151 AD2d 714, 715 [1989]). The clear intent of the Declaration is that the eight-foot strip be used for parking and that the common driveway (alleyway) or rear easement area remain unobstructed in order to facilitate the turning of vehicles. Therefore, parking within the "common driveway" or alleyway "shall" result in termination of "said owner's" "right to his enjoyment of the privilege of this easement."

It also is clear that the grantees of the easement are permitted to park only one vehicle and that this vehicle is to be parked within the eight-foot easement area at the rear of each lot. The defendants' contention that the language of the easement permits more than one vehicle to be parked is inconsistent with the plain language of the Declaration, which states, "one private pleasure vehicle to each lot." In addition, the Declaration expressly authorizes parking within the eight-foot strip, not within the rear alleyway or common driveway (cf. West Babylon Union Free School District v Quality Door and Hardware, Inc., 307 AD2d 290, 290 [2003] [grantor of easement of access was not permitted to add new restrictions on use of the easement that were not contemplated by the original granting instrument]).

Therefore, defendants Duffy Brandariz and Pellegrino, who admit having continuously parked within the northernmost corner of the "common driveway" or alleyway, are in violation of the terms of the easement (see Ellis v Town of Pelham, 106 A.D. 145 [1905]). Plaintiff concedes that notwithstanding this violation of the easement, no objection was made to defendants' ongoing use of the alleyway, or "common driveway," for parking. Thus, these defendants contend that as a result they have gained the right to park in the easement area by prescriptive use.

In order for the use of another's property to ripen into an easement by prescription, the use must be adverse, open and notorious, continuous and uninterrupted for a 10-year period (CPLR 212; RPAPL 311; Spiegel v Ferraro, 73 NY2d 662, 664 [1989]; Di Leo v Pecksto Holding Corp., 304 NY 505, 510-512 [1952]; Mandia v King Lumber & Plywood Co., 179 AD2d 150, 156 [1992]; Reiss v Maynard, 148 AD2d 996 [1989]; A & R Fuels, Inc. v Lieberman, 146 AD2d 726, 727 [1989]; Cannon v Sikora, 142 AD2d 662 [1988]; Borruso v Morreale, 129 AD2d 604 [1987]). The party claiming an easement has the burden of establishing these elements by clear and convincing evidence (Mandia, 179 [*7]AD2d at 156). The right acquired by prescriptive easement is measured by the extent of the use. Thus, in this case, defendants Duffy Brandariz and Pellegrino would acquire, at most, an easement equal to the portion of the common driveway actually used by them for parking during the prescriptive period (Mandia, 179 AD2d at 157).

The defendants Duffy Brandariz and Pellegrino both affirm that, out of convenience, they and their spouses have parked in the northernmost portion of the alleyway. Duffy Brandariz has parked continuously in that area since she took title to her property in 1984 and the Pellegrino's since 1967. Both indicate that they never sought permission from the plaintiff to park in this area, and have exercised control over the specific spot by cleaning snow and ice from it in the winter and keeping it free of debris. Notably, however, Anthony Pellegrino affirms that "all parties lived peaceably together and shared [the easement] space," and that he and his neighbors "have approached Mr. Guzzone in order to solicit his co-operation and contribution in repairing the driveway" (see Morgan v Chong Kwan Jun, 30 AD3d 386, 387 [2006]; Frumkin v Chemptop, 251 AD2d 447, 449 [1998]).

In opposition to the defendants' claim of prescriptive easement, and in support of her cross-motion to dismiss this counterclaim, plaintiff argues that parking in the northernmost alleyway, parking more than one vehicle and renting parking spaces to non-residents of the Tompkins Place properties, violates both the terms of the Declaration of Easement and the defendants' Certificates of Occupancy.[FN1] In addition, Mr. Guzzone avers that "for a number of years" he has parked his own vehicle in the easement area without complaint by the defendants, and that the defendants have "failed and refused" to resurface or repair the cracking pavement."

"Generally, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive" (Duckworth v Ning Fun Chiu, 33 AD3d 583, 584 [2006] quoting J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d 548, 550 [2005]). The record shows that defendants Duffy Brandariz and Pellegrino have openly and notoriously parked their vehicles in the northernmost easement area continuously for over ten years. Further, this use is undisputed by plaintiff as evidenced by her application to terminate the easement for the very same use. Thus, the burden shifts to plaintiff to rebutted the presumption that the defendants' use was "adverse" and "hostile" (Duckworth, 33 AD3d at 584). In this regard, the record shows that plaintiff had notice of defendants "misuse" of the easement [*8]for over ten years and failed to object to such use, until a dispute arose regarding the AC units. The affidavits of Nicholas Guzzone and Anthony Pellegrino demonstrate that plaintiff and the defendants jointly enjoyed the use of the common driveway, without dispute or inconvenience, for several years and had ongoing, albeit futile, discussions regarding which party was responsible for repairing the area. The record before this court reveals that the defendants' use was permitted as a matter of willing accord and neighborly accommodation and was not such that the plaintiff would have recognized that such use constituted the assertion of a hostile claim (Franklin v Chemtop, 251 AD2d 449 [1998]; Duckworth, 33 AD3d at 584; Mandia, 179 AD2d at 156; see Jansen v Sawling, 37 AD2d 635 [1971]; see also J.C. Tarr, Q.P.R.T., 19 AD3d at 551). Therefore, defendants Duffy Brandariz and Pellegrino fail to make a prima facie showing of entitlement to park in the northernmost alleyway by prescriptive use (Duckworth, 33 AD3d at 584; see also Eskenazi v Sloat, 40 AD3d 577 [2007]; JMD Holding Corp., 4 NY3d at 384).

Nonetheless, by failing to object, until now, to such use of the alleyway or "common driveway" by the defendants, the plaintiff has waived her right to presently seek cancellation of the easement on this basis (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Management, L.P., 7 NY3d 96, 104, 106-107 [2006], citing Hadden v Consolidated Edison Co., 45 NY2d 466, 469 [1978]; Jacobson v Van Rhyn, 127 AD2d 743, 744 [1987]). "Contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned [see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 (1982)]. Such abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage' [General Motors Acceptance Corp. v Clifton-Fine Cent. School Dist., 85 NY2d 232, 236 (1995) . . .]," (Fundamental Portfolio Advisors, Inc., 7 NY3d at 104). In this case it is undisputed that for a significant period of time plaintiff's managing agent raised no objection to the parking of cars at the north end of the common driveway and, by his own admission, also parked his vehicle in this area (cf. Tierney v Drago, 38 AD3d 755, 757-758 [2007]).

Repairs and Maintenance

Plaintiff contends that the defendants are in violation of the terms of the easement due to their failure to repair the cracked and damaged pavement and as a result seeks summary judgment on her claim for $35,000.00. "[A]bsent agreement to the contrary, the burden to maintain an easement falls upon the owner(s) of the dominant estate" (Cypress Hills Cemetery v City of New York, 35 AD3d 788, 789 [2006]; Morgan v Chong Kwan Jun, 30 AD3d 386, 388 [2006]). "When an easement is created for the benefit of multiple ... tenements, all owners are mutually burdened with the construction, maintenance, and repairs of the subject property" (Raskin v Crown-Kingston Realty Assocs., 254 AD2d 472, 473 [1998]). Accordingly, plaintiff is entitled to partial summary judgment on her second [*9]cause of action. The reasonable cost of such repair and apportionment between the parties is to be determined. Accordingly, it is

ORDERED, that such portion of the defendants' motion for summary judgment as seeks dismissal of plaintiff's first cause of action is granted, and it is further

ORDERED, that such portion of the defendants' motion as seeks summary judgment on their first and second counterclaims is denied, and it is further

ORDERED, that such portion of the plaintiff's cross-motion as seeks summary judgment dismissing the defendants' counterclaims is granted and the counterclaims are dismissed, and it is further

ORDERED, that such portion of the cross-motion as seeks summary judgment on plaintiff's second cause of action is granted to the extent indicated herein, and as seeks summary judgment on plaintiff's first cause of action is denied.

ENTER,

_________________

J.S.C. Footnotes

Footnote 1:Uncertified copies of the Certificates of Occupancy for the 43, 45 and 47 Tompkins Place properties, supplied by plaintiff, reflect that parking is authorized "for one (1) car at rear of building" (see City of New York v Wilson & Co., Inc., 278 NY 86, 97 [1938], citing Burbank v Fay, 65 NY 57, 66 [1875] ["where no express grant can be allowed, the law will not resort to the fiction of an implied grant so as to create a prescriptive right"]).