Wiiliamsburgh Garage, LLC v South 4th St. Condos, LLC

[*1] Wiiliamsburgh Garage, LLC v South 4th St. Condos, LLC 2013 NY Slip Op 51668(U) Decided on October 4, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 4, 2013
Supreme Court, Kings County

Wiiliamsburgh Garage, LLC, Plaintiff,

against

South 4th Street Condos, LLC, Defendant.



26364/11



Plaintiff Attorney:

Jarrett M. Behar, Esq.

Sinnreich Kosakoff & Messina, LLP

267 Carleton Avenue, 3rd Floor, Suite 301

Central Islip, NY 11722

Defendant Attorney:

Goldberg Rimberg, PLLC

115 Broadway, 3rd Floor

New York, NY 10006

David I. Schmidt, J.

Upon the foregoing papers, defendant South 4th Street Condos, LLC, moves by Order to Show Cause, for an order, declaring that it has the right of ingress and egress onto the easements located on 185-191 South 4th Street, Brooklyn, New York (the Burdened Parcel) and further granting it ingress and egress onto the property benefitted by the easements located at 177 South 4th Street, Brooklyn, New York, to inspect, maintain, change, correct and/or remove alleged obstructions to the easements.

Factual Background

Defendant South 4th Street Condos, LLC (hereinafter "the defendant" or "South 4th") is the owner of the premises known as 185-191 South 4th Street, Brooklyn, New York (the Burdened Parcel), which it purchased from the plaintiff Williamsburg Garage, LLC (hereinafter "plaintiff" or "Williamsburgh"), through an agent. Plaintiff is the owner of the neighboring premises known as 177 South 4th Street, Brooklyn New York (hereinafter the Benefitted Parcel or plaintiff's premises), which is situated to the west of the Burdened Parcel. The two parcels are contiguous to one another. In connection with the sale of the Burdened Parcel to South 4th, various easements were granted to the plaintiff in connection with its sale of the neighboring property to the defendant. Pursuant to the Declaration of Easements, dated January 13, 2005, South 4th granted the following easements in favor of Williamsburgh:

Venting Easement

An easement on the Burdened Parcel for the feed and exhausting of mechanical ventilation equipment pipes and ducts located in, on and adjoining the building constructed or to be constructed on the Benefitted Parcel across the Burdened Parcel . . . which easement shall include, without limitation, access to such area and equipment for installation, repair, replacement, maintenance and inspection

Refuse Storage Easement

An Easement on the Burdened Parcel for storing refuse is properly secured in up to two (2) yard containers, dumpsters or receptacles, (b) such refuse is collected and removed from the Burdened Parcel no less than every other business day, and (c) no obnoxious odors or vapors are allowed to emanate from such refuse.

Second Floor Easement

An easement "for the purpose of providing ingress and egress to the second floor of the building constructed or to be constructed on the Benefitted Parcel and shall run from the West side of the Burdened Parcel to the public street now known as South 4th Street."

Staircase Easement

An easement shall be "for the continued existence of the staircase which is now located on the Burdened Parcel .... or in the alternative for the erection of a substitute staircase to serve as a legal means of ingress and egress to the second floor of the building constructed or to be constructed on the Benefitted Parcel."

Basement Easement [*2]

An easement "for the purpose of a legal means of ingress and egress to the basement of the building constructed or to be constructed on the Benefitted Parcel through the existing door . . .and shall run from the West side of the Burdened Parcel to the public street now known as South 4th Street and allow access to the Benefitted Parcel."

Ladder Easement

An easement on the Burdened Parcel to provide access to and from the roof of the building constructed or to be constructed on the Benefitted Parcel from a ladder which is presently annexed to the building on the Benefitted Parcel. The ladder is located on the Burdened Parcel above the existing staircase referred to in Paragraph 3 above. Grantee (Williamsburg) shall continue to have access to the roof through the use of the existing ladder (or replacement thereof).

Subsequent to the granting of the easements, the defendant erected a new building on the Burdened Parcel. On or about November 22, 2011, plaintiff commenced the within action alleging trespass, nuisance, permanent injunction, breach of contract, and a declaration of rights pursuant to RPAPL Article 15. Plaintiff alleges that the new building erected on the Burdened Parcel premises either eliminated or largely obstructed the plaintiff's use of the various easements set forth in the Declaration of Easements. In this regard, plaintiff alleges that the new constructioneliminated plaintiff's ability to utilize the basement, access to the first and second floors of the Benefitted Parcel during the majority of construction, and left the premises in a dangerous condition, which severely limits the use of same. Further, plaintiff contends that the construction has prevented its access to the roof of the premises, thereby making roof maintenance extremely difficult and time consuming. Plaintiff also alleges that the new construction removed plaintiff's existing staircase that was the main entrance to the second floor of its building, eliminated the area for storage and refuse and eliminated the flow of light and air into the easements. Plaintiff's complaint seeks, inter alia, a permanent injunction directing South 4th to remove all obstructions from the easements, and a judgment declaring Williamsburgh's rights in the subject easements. Defendant interposed a Verified Answer on or about January 5, 2012 denying the allegations. Defendant now seeks an order allowing it to enter onto the plaintiff's property in order to "to inspect, maintain, change, correct and/or remove alleged obstructions to the easements."

Discussion

In support of this motion, South 4th contends that sometime in November 2012 it dismantled parts of a brick wall on plaintiff's premises to ensure that plaintiff had adequate ingress and egress to the 177 South 4th property (the Benefitted Parcel). However, shortly thereafter, Williamsburg instructed South 4th that it was not authorized to work or trespass on or otherwise access the property or improvements owned by Williamsburgh. Defendant contends that it needs access to Williamsburgh's property in order to continue constructing the new easement staircase and install a ladder. South 4th maintains that it merely seeks to install the staircase to Williamsburg's roof. In order to do so, however, South 4th contends that it must deconstruct part of the plaintiff's roof and parapet wall and remove portions of the wall in order to ensure the staircase is in compliance with the appropriate building codes. South 4th contends that, to date, the improvements are unfinished and seeks an order from this court permitting it access to Williamsburgh's roof so it can complete the work.

South 4th contends that it is otherwise in full compliance with the Declaration of Easements and believes that properly installing the staircase will alleviate any need for further litigation. South 4th further contends that it has not created or otherwise caused any [*3]alleged obstructions to the easements at issue and that Williamsburg's refusal to allow it access to maintain/remedy the subject easements is unreasonable. In addition, South 4th avers that it has made other accommodations for the easements affected by its construction project. For instance, defendant states that it allows the plaintiff to store its refuse in South 4th's garage at no cost to plaintiff, and permits an employee of the plaintiff to park his car there free of charge. South 4th also states that it has relocated its mechanical pumps and/or building systems to a new location on the 185 South 4th property (Burdened Parcel) at its own expense in order to improve the entry and exit for the plaintiff's property.

In further support of its motion, South 4th notes that the subject easements are not exclusive, and argues that it has the right to change the location of the easements. In this regard, South 4th refers to Section 7 of the Declaration of Easements, which specifically states:

"Nothing herein shall be deemed to prohibit Grantor [South 4th] from changing the use of the Burdened Parcel or from erecting improvements thereon, provided always that there is maintained required open space for mechanical ventilation of the building improvements on the Benefitted Parcel, for the storage of refuse, for legal means of egress to and from the Benefitted Parcel, and for roof access, all as provided for herein."

Based upon the above-referenced language, South 4th avers that the location of the subject easements, as they existed on or about January 13, 2005, were subject to change upon future construction, and that the parties were all in agreement as to same.

In opposition, the plaintiff points out that the easements were granted to plaintiff in connection with its sale of the neighboring property to the defendant so that plaintiff could still utilize and develop its real property. Plaintiff contends that the defendant misrepresents the broad scope of the actual easements at issue as a mere ingress and egress easement and that the easements were more general and unlimited. In this regard, plaintiff points out that the easements were for various purposes in addition to ingress and egress such as storage of refuse, ventilation, and roof access, and they were all granted in order to protect the plaintiff's right to utilize and develop its property for the maximum lawful use permitted. It is plaintiff's contention that South 4th has constructed its building directly on top of the subject easements, which has unreasonably limited the plaintiff's ability to utilize the easements and develop its property. Plaintiff further contends that South 4th's newly constructed building has effectively eliminated plaintiff's main entrance, thereby significantly reducing the available frontage, an extremely valuable commodity, as well as eliminated plaintiff's ability to directly access its roof.

In addition, the plaintiff avers that South 4th failed to inform the New York City Department of Buildings (DOB) of the subject easements which it failed to reference in the approved construction drawings. Lastly, plaintiff argues that South 4th is not entitled to the requested relief inasmuch as it has failed to proffer any detailed plans for the proposed work that it seeks to perform on the plaintiff's property.

In reply, the defendant maintains that the Declaration of Easements quite clearly notes that there are 4 easements contemplated by the document and that all that is required is "open space" to accommodate same. Thus, defendant contends that there is no strict requirement as to the size of the easements. Defendant contends that the only condition that requires a remedy is affixing a ladder to the plaintiff's building in order to access its roof, which defendant claims it is trying to do by way of the present motion.

It is well settled that express easements, such as the one at bar, are defined by the intent or object of theparties (see Lewis v Young, 92 NY2d 443, 449 [1998]; Guzzone v [*4]Brandariz, 57 AD3d 481 [2008]; Estate Ct., LLC v Schnall, 49 AD3d 1076, 1077 [2008]). The intent of parties in creating an easement "should be gleaned solely from the language of the instrument creating the easement. "It is only when language used in a conveyance is susceptible of more than one interpretation that the courts will look into surrounding circumstances, the situation of the parties, etc." (Webster v Ragona, 7 AD3d 850, 853—854 [2004] [citations omitted]). "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 a physical passageway itself, that is granted to the easement holder" (Lewis v Young, 92 NY2d at 449). Indeed, an owner of land that is burdened by an express easement for 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 v Young, 92 NY2d at 449; see Guzzone, 57 AD3d at 482; Sambrook v Sierocki, 53 AD3d 817 [2008]).

The intent of the parties in creating an easement by express grant should be given effect, and here that intent can be readily ascertained by an examination of the unambiguous language set forth in the Declaration of Easements. The Declaration of Easements in this case was for various purposes which included allowing for plaintiff's mechanical ventilation equipment and pipes/ducts (Venting Easement), storage of refuse (Refuse Storage Easement), ladder access to and from the plaintiff's roof (Ladder Easement), as well as legal means of ingress and egress to the second floor (Second Floor and Staircase Easements) and the basement of the plaintiff's premises (Basement Easement). As to the Second Floor Easement, the Declaration of Easements specifically states that the easement shall run from the West side of the Burdened Parcel to the public street now known as South 4th Street . . . and shall be for the continued existence of the staircase which is now or in the alternative for the erection of a substitute staircase located on the Burdened Parcel . . ." (see Declaration of Easement, Section 3 [emphasis added]). Likewise, the language pertaining to the Ladder Easement states that the plaintiff shall have access to the roof through the use of "the existing ladder (or replacement thereof)" (Declaration of Easement, Section 4, [emphasis added]). Additionally, as defendant points out, Section 7 of the Declaration of Easements specifically reserves South 4th's right to change the use of the Burdened Parcel or to erect improvements on the premises, provided an "open space" is maintained for the various easements set forth therein.

The court finds that the language, as quoted above, is not ambiguous and clearly gives defendant the right to change the use of the Burdened Parcel or erect improvements upon it not only at the time of the grant but also subsequent to that date, provided that the defendant maintains an "open space" for the mechanical ventilation of the building improvements, storage of refuse, roof access and legal means of ingress and egress to and from the benefitted parcel (see Van Laak v Malone, 92 AD2d 964 [landowner could relocate right of way where easement granted was "the right of ingress and egress . . . over a route now used . . . or one hereinafter designated to be used"]). Thus, it is clear that the easements granted to the plaintiff were subject to future alterations/changes in the event the defendant either changed the use of the Burdened Parcel or erected improvements upon it (see Lewis v Young, 92 NY2d at 449).

However, it is equally clear that, pursuant to Section 8 of the Declaration of Easements, such improvements shall not "interfere with or impede" the plaintiff's easement rights and shall be done in a way in which the plaintiff "can at all times utilize the Benefitted Parcel . . . for the maximum lawful use permitted on the date hereof." (Emphasis added). Section 8 of the Declaration of Easements states in detail as follows: [*5]

Grantor [South 4th] . . . hereby covenant and agree that the erection of a building on the Burdened Parcel shall not interfere with or impede the existing means of egress or ingress to and from the Benefitted Parcel, the mechanical ventilation of the building and the improvements on the Benefitted Parcel, the storage of refuse on the Burdened Parcel, and access to the roof of the building on the Benefitted Parcel, all as the same currently exists, and the construction of such building on the Burdened Parcel shall be performed so that the Grantee [Williamsburgh] can at all times utilize the Benefitted Parcel and the building (s) and improvements located and to be located thereon for the maximum lawful use permitted on the date hereof."

As the Court of Appeals held in Lewis v Young, 92 NY2d at 452, "a landowner, consonant with the beneficial use and development of its property, can move [the] right of way . . . so long as the change does not frustrate the parties' intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way."

Therefore, the pertinent question at issue is whetherdefendant's newly constructed building and/or proposed changes to the subject easements significantly or unreasonably interferes or increases the burden on the plaintiff's easement rights, or in any way lessens the usefulness of said easements (see id. at 452; Hulse v Mack, 261 AD2d 580 [1999]; see also Henricksen v Trails End Co., 303 AD2d 458 [2003]). Although defendant seeks an order declaring and granting it the right of ingress and egress onto the plaintiff's property in order to correct and/or remove alleged obstructions to the easements, it has failed to establish its entitlement to such relief. Indeed, the parties' conflicting versions of the facts and circumstances surrounding the current conditions of the easements raise numerous issues of fact as to whether the defendant's building improvements and/or proposed changes/modifications to the subject easements (i.e., replacement of staircase and ladder) significantly impair the plaintiff's use of same or in any way lessens the utility of the various easements granted to the plaintiff.

Moreover, courts have held that the question of whether an easement holder's rights are "impaired" is a factual one requiring trial on the matter (see Lewis v Young, 92 NY2d at 454 [remitting case for determination of fact question concerning alleged impairment of easement holder's right of passage]; Henricksen v Trails End Co., 303 AD2d 458 [plaintiffs failed to demonstrate entitlement to relocate defendants' easement where they failed to show that proposed change did not significantly frustrate easement holder's rights]; Lucas v Kandis, 303 AD2d 649 [2003] [issue of fact exists as to whether the defendant's fence and parked vehicles that encroached into common driveway substantially interfered with the landowner's use and enjoyment of the easement]; Martone v Prislupsky, 269 AD2d 673, 675 [2000] [issue of fact exists as to whether fence unreasonably interfered with plaintiffs' use of easement]; see also Hoeffner v John F. Frank, Inc., 302 AD2d 428, 430 [2003] [Second Department stated: "The issue of whether the parking of vehicles in the easement is an intrusion of a de minimis nature should be resolved at trial]).

Accordingly, since issues of fact exist regarding whether defendant's current construction and/or proposed plans adversely impacts the plaintiff's easement rights as set forth in the Declaration of Easements, defendant's motion seeking the right to go onto plaintiff's premises to continue with its proposed changes to the easements is hereby denied.The foregoing constitutes the decision and order of the court.

E N T E R, [*6]

J. S. C.