Vick v Box Tree Assets, LLC

[*1] Vick v Box Tree Assets, LLC 2008 NY Slip Op 52113(U) [21 Misc 3d 1120(A)] Decided on October 24, 2008 Supreme Court, Yates County Falvey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2008
Supreme Court, Yates County

Carmen J. Vick, Plaintiff

against

Box Tree Assets, LLC, Defendant.



2007-0412



APPEARANCES:

The BrockleBank Firm

(Derek G. Brocklebank, Esq., of Counsel)

Attorney for Plaintiff

Woods Oviatt Gillman, LLP

(Donald W. O'Brien Jr., Esq., of Counsel)

(Attorney for Defendant)

W. Patrick Falvey, J.

Defendant moves for summary judgment dismissing the complaint, and an order granting the defendant's counterclaim due to plaintiff's failure to respond to same.Plaintiff sued defendant for adverse possession and easement by necessity/prescriptive easement, claiming the right to maintain a leach bed under defendant's property for the benefit of plaintiff's septic system. The properties adjoin on the southern end of Canandaigua Lake. The complaint was served September 1, 2007. Defendant answered, interposing affirmative defenses and a counterclaim for declaratory judgment that plaintiff has no rights on or to defendant's property. There has been no reply.

Plaintiff's property is improved by a seasonal cottage and defendant's is improved by a seasonal cottage, outbuildings and utility connections for trailers. Joseph Incardona owned both parcels prior to 1980, when he transferred plaintiff's parcel to Henry Gasbarre. According to Gasbarre's affidavit, Gasbarre did not discuss with Incardona the location of septic improvements when he acquired plaintiff's property. (see Defendant's Ex 3)

Gasbarre sold plaintiff's property in 1985 to Richard Zwitzer and Nanci Arnold. Their affidavit also says nothing was done with the septic system at the time they acquired plaintiff's property and they did not know where the system was. (Ex 4) They sold to Buzan in 1987. Plaintiff bought from Buzan in 2002. There is no reference in the deed or plaintiff's abstract of title to any easement regarding leach lines under defendant's property. [*2]

Plaintiff inspected the property two times before he purchased. He asked the realtor whether there was a septic system and she said yes, but did not know where it was. (Ex 6)He asked the realtor to ask the Buzans, and they said they did not know. (Ex 7) He inspected a second time, when snow was on the ground. (Ex 8) He did not find out the location prior to closing.

Plaintiff spoke to Incardona, after plaintiff purchased, when Incardona still owned defendant's parcel and was running a trailer park there. He asked Incardona and he said he did not know where the septic system was. Plaintiff, an engineer, investigated on his own, and then learned that the subsurface encroachment was 25 feet in length, and was 24 to 36 feet under ground. (Ex 16)

Plaintiff told Incardona in 2004 that the leach field was on Incardona's property, who looked surprised. Plaintiff did not ask Incardona for permission to continue the leach line use.

Incardona sold defendant's parcel to defendant in 2005. Plaintiff talked to defendant's representative, Amy Tait, in the early summer of 2005, when he saw her on the defendant's property, prior to defendant's closing on its parcel. He told Ms Tait that "we have a leach field that very likely is on your property." (Ex 15)

The leach field under defendant's property is not visible on inspection of the ground. There are fruit trees and grass growing there.

Defendant points out that plaintiff can not make a prima facie showing for adverse possession. The plaintiff can not show that his possession was hostile and under claim of right, open and notorious, or exclusive. Defendant asserts plaintiff's claim of prescriptive easement fails for the same reason. The claim of easement by necessity fails because plaintiff can not show strict or absolute necessity. The defendant asks the court to disregard plaintiff's allegations of easement by implication due to plaintiff's failure to specify this cause of action in the complaint.

Defendant argues it is too late for plaintiff to change theories. Defendant is prejudiced because the discovery deadline has passed and defendant would have handled its defense differently on this theory. Defendant was disputing a claim for easement by necessity, and that required absolute necessity. If defendant knew plaintiff was seeking easement by implication, where only reasonable necessity is required, defendant would have explored costs of alternate septic systems further. A party should not be permitted to prosecute on one theory and then change theories when it learns it is deficient.

Plaintiff opposes defendant's motion. Plaintiff says the septic system has been in its present physical location since the home was built. It is impossible or impractical to relocate the system due to costs, site constraints, and inadequate soil percolation.

Prior to taking title, plaintiff confirmed with septic inspector Barden that the system was grand fathered. There were no records of it. His neighbors said new systems cost $20,000 - $30,000. He argues it is unreasonable for him to pay $20,000 to Box Tree to acquire a 20' x 30' area from defendant, or to pay for a new system. Thus, plaintiff asserts, that he has an easement by implication. He says he can show that there was unity of ownership, that the use was established prior to the subdivision, and that the part of the land retained by Incardona, was subordinated to the plaintiff's parcel in regard to the leach field. Incardona never objected to the location of the septic system when plaintiff told him about it in 2004. [*3]

Plaintiff asserts the easement is plainly and physically apparent by reasonable inspection, and the use affects the value of the estate benefited and is necessary to the reasonable use of plaintiff's estate. A septic system is reasonably necessary to the use and enjoyment of plaintiff's property by implication. It can be inferred that Incardona intended, but simply overlooked the easement when he sold the property.

Plaintiff says there are no reasonable alternatives. He has an engineer's affidavit showing the cost of a system is $38,000 (see Plaintiff's Exhibit I). The property is assessed at $91,000, so the cost is extraordinary.

Plaintiff does not contest defendant's right to summary judgment on the adverse possession claim asserted in plaintiff's first cause of action. But, there are questions of fact on the second cause of action for easement by implication. The reasonable necessity of the septic improvements for the beneficial use of plaintiff's property and reasonableness of the cost of a new system are questions for the jury.

As for defendant's motion for summary judgment on its counterclaim, the counterclaim is in sum and substance a simple defense to the complaint. It simply responds to plaintiff's allegations by denying hostility and alleging there was a revocable license. A reply was not necessary since it would be redundant. Plaintiff asserts that given the liberality of pleadings under CPLR 3026, his claim for easement by implication should stand.

First addressing defendant's argument that the plaintiff may not allege easement by implication because plaintiff did not plead same in the complaint, it should be noted that CPLR §3026 provides that pleadings are to be liberally construed. Defects are to be ignored unless a substantial right of a party is prejudiced. As Professor Siegel notes in his New York Practice: "It is not necessary that the claim pleaded be given any particular name. It can even be named wrong. It is sufficient if the pleading alleges any cause of action that the law recognizes and on which it offers relief." New York Practice, 4th Ed, page 344.

While the plaintiff's complaint does not use the words "implied easement", it does set forth facts and assertions that address the various elements of that cause of action, including unity of ownership, that the use was established prior to the split, that the easement effects the value of the estate benefitted, and that it is reasonably necessary. The Court concludes that the pleadings gave defendant sufficient notice of the plaintiffs claims, within the meaning of CPLR §3026.

However, in that the plaintiff does not contest the defendant's assertion that the plaintiff can not prove his first cause of action for adverse possession, this claim is hereby dismissed. Likewise, to the extent that the complaint alleges a cause of action for prescriptive easement, and easement by necessity, these causes of action are also dismissed, since plaintiff is unable to prove all the necessary elements of each of them.

The elements of a cause of action for implied easement have been stated as follows:

"Where, during the period in which title was unified, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another, and where such servitude, at the time of severance of title, remains in use and is reasonably necessary for the fair enjoyment of the estate conveyed, a grant of the right to continue such use is implied in the conveyance of the dominant estate." Monte v DiMarco, 192 AD2d 1111, 1111-1112, 4th Dept., 1993. [*4]

There are questions of fact as to whether this plaintiff has an implied easement by grant based upon existing use, and so the defendant's motion for summary judgment is denied.

An implied easement by grant has been distinguished by the courts from an implied easement by reservation. When by reservation, the courts require a showing of strict necessity, since the easement benefits the land retained by the common grantor and burdens the land he has just granted. Paine v Chandler, 134 NY 385.Here, the easement would be an implied easement by grant, since the easement would benefit the land first sold by Mr. Incardona, so the plaintiff need not show strict necessity, but merely reasonable necessity. See Valicenti v Schultz, 27 M 2d 801.

Here, there is no question that title to the two parcels was unified at one time. In fact, both were held by defendant's immediate predecessor in interest, Mr. Incardona, who was responsible for the subdivision into the two parcels held by these parties. And, while the location of the leach field on defendant's parcel is not obvious to a person inspecting the properties, its existence over the boundary line onto defendant's parcel was made known to both the original grantor, Incardona, and to this defendant, prior to purchase by defendant. Thus, there was actual knowledge of the servitude by defendant, and by the original grantor, prior to purchase by the defendant, which in this Court's view, meets the requirement that the servitude be "apparently permanent and obvious". Monte v DiMarco, supra , 192 AD2d 1111, 1111-1112.

Plaintiff has established the use of the septic system during the period of unity of title through the affidavits of his predecessors in interest including the buyer from Incardona. It will be up to plaintiff to prove at trial that the use of the leach field affects the value of his estate and that its continuation is necessary to the reasonable beneficial enjoyment of his estate. See Crawford v Lesco, 207 Misc. 93, app dism. 286 AD 1143. There are questions of fact concerning the reasonable beneficial enjoyment aspect of the matter, given the contrary proof on this issue offered by both parties. See Heatherdell Farms v Huntley Estates, 130 NYS2d 335.

The defendant's summary judgment motion is granted to the extent that the plaintiff's first cause of action is dismissed, and plaintiff's second cause of action is dismissed to the extent it seeks a finding of a easement by necessity and an easement by prescription. The defendant's

summary judgment motion is denied to the extent that it seeks dismissal of the plaintiff's cause of action for an implied easement. The defendant's motion for summary judgment on its counterclaim is also denied.

This constitutes the Decision, Opinion and Judgment of the Court.

SO ORDERED.

DATED: October 24, 2008______________________________________

Hon. W. Patrick Falvey

Acting J.S.C.