Berman v Children's Aid Socy.

[*1] Berman v Children'S Aid Socy. 2014 NY Slip Op 51909(U) Decided on December 23, 2014 Supreme Court, Richmond County Straniere, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2014
Supreme Court, Richmond County

David Berman, Plaintiff

against

The Children's Aid Society., Defendants.



80232/10



Michael J. Motelson, Esq.

101 Tyrellan Avenue, Ste. 420

Staten Island, New York 10309

(plaintiff's counsel)

Greg Zucker, Esq.

Westerman Ball et al.

1201 RXR Plaza

Uniondale, N.Y. 11556

(plaintiff's co-counsel)

Eric Rosenberg

Fidelity National Law Group

350 Fifth Avenue, Ste. 3000

New York, New York 10118

(defendant's counsel)
Philip S. Straniere, J.

The following items were considered in the review of the following Motion to Amend and Motion to compel

PapersNumbered

Motion To Amend and Affirmation1

Motion To Compel and Affirmation2

Affidavit of Michael J. Motelson, Esq.3

Affirmation of Eric Rosenberg4

Affirmation of David Gise, Esq.5

Plaintiff's Memo of Law6

Defendant's Memo of Law7

Affirmation of Eric Rosenberg8

Reply Affidavit of Michael J. Motelson, Esq.9

Reply Affirmation of Eric Rosenberg10

Reply Affidavit of Greg S. Zucker, Esq.11

Defendant's Reply Memo of Law12

Plaintiff's Reply Memo of Law13 ExhibitsAttached to Papers

Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:

Plaintiff, David Berman (Berman), initially commenced this as a Special Proceeding pursuant to Civil Practice Law & Rules (CPLR) Article 4, against the defendant, Children's Aid Society (CAS), for a declaration pursuant to CPLR §3001 and §3017(b) that Berman has an easement for access from his property over and upon a portion of the real property owned by the defendant. Plaintiff is also seeking damages caused by defendant's failure to permit plaintiff to enforce its alleged easement as well as punitive damages.

Defendant in its answer in addition to denying plaintiff's allegations, contended that the relief plaintiff was seeking should properly be brought as an action at law pursuant to Real Property Actions and Proceedings Law (RPAPL) Article 15. The court permitted plaintiff to file an amended complaint reflecting the proper basis of its claim and for the defendant to file an amended answer in that regard.

In addition, the plaintiff is seeking an order directing the defendant to cooperate with plaintiff to effectuate the construction of improvements over the CAS land including the installation of a street. As part of that process plaintiff would want to have defendant issue a letter or any other documentation required by the municipal agencies to permit plaintiff's access to that portion of defendant's property.

The parties have agreed with the court that the crux of the litigation is what right, title or interest, if any, the plaintiff has in an unopened street appearing on a map from 1872 abutting plaintiff's property and entirely within defendant's property line.

Background:

Plaintiff alleges that his right to access defendant's property is derived from a map from 1872. The map is described as "Map of Property at New Brighton, Staten Island, New York, H. Tracy Arnold & Co., Managers." The map was filed with the Richmond [*2]County Clerk, on June 17, 1872. The Clerk labeled it as "Filed Map #320."[FN1] This map will be referred to below as the "Arnold map."

Although this map was filed with the Richmond County clerk in 1872, prior to Richmond County joining the City of New York in 1898, neither party has contested that the Arnold map has been accepted by the City as an official map.

The copy of the map submitted by petitioner with its papers is dated December 14, 1932 by North, Allison and Ettlinger, City Surveyors. It is certified as a true copy of the 1872 map. The copy does not indicate to whom it is being certified, nor for what purpose.

The map discloses a planned residential development was proposed by the Arnold company on the east and west side of Lafayette Avenue. The area of land this case is concerned with is on the west side of Lafayette Avenue. The map shows the land being subdivided into 25 foot by 100 foot lots. The map shows streets to be developed through the Arnold property beginning at Lafayette Avenue and running westerly to the property of Charles Goodhue. The Goodhue property is now owned by defendant CAS. Portions of the Goodhue property have been conveyed by CAS to the City of New York to be used as a public parkland. The area of the CAS property which is the subject of this litigation has been temporarily withdrawn from sale to the City until this dispute is resolved.

Among the streets listed on the Arnold map as running westerly from Lafayette Avenue are Arnold Street, 3rd Avenue, 2nd Avenue, and 1st Avenue. Arnold Street being the northerly most of these streets. It is conceded that of these, only Arnold Street is open as a public street but not to the length on the 1872 map. The other streets were never opened. In fact, the land on which 3rd, 2nd and 1st Avenues were to occupy was conveyed to the Goodhue family from a grantor other than Arnold. All the Goodhue family land was subsequently acquired by CAS and as noted above, a large portion of it is now being sold to the City of New York to be retained as parkland. Apparently acquisition of the CAS property as parkland would result in all of the mapped but unopened streets from the Arnold map being officially demapped.

It is conceded that 3rd Avenue at some point was renamed Alden Place. Another difference between the streets on the Arnold map and the current existing street layout is that on the map on the land east of Lafayette Avenue there are no streets running easterly. [*3]Actually, on the easterly side of Lafayette Avenue, these originally non-existent, unmapped streets of Arnold Street and Alden Place have been created and dedicated as public streets in that direction. It should be noted that on the map the streets are designated numerically while in the deed description the number is written out.

The court has attempted to determine how title to their respective properties devolved upon the parties. Some of the copies of the deeds were submitted by the parties. Many of them are handwritten making reading photocopies of them a challenging task. Based on this information and the public records of the County Clerk, the court has determined as follows:

CAS Property:

CAS's title to the property was acquired as follows:

Arnold's widow conveyed the property to Charles F. Hart and Ella T. Hart by deed dated June 14, 1894 and recorded June 18, 1894.

The Harts then conveyed the property to Sarah C. Goodhue by deed dated October 5, 1894 and recorded on November 17, 1894.

Sarah Goodhue conveyed the property to CAS by deed dated June 1, 1912 and recorded on June 11, 1912.

Berman Property:

Berman acquired title to his property as follows:

Arnold and his wife Sallie E. Arnold conveyed title to Jacob Symonds by deed dated July 26, 1873 and recorded on October 18, 1873.

Plaintiff does not recite any other conveyances in the chain of title nor has plaintiff produced any intervening deeds, until Berman became owner by deed dated December 22, 2004 from Christos Marinakis and George Marinakis. For some reason this deed was not recorded until September 9, 2005. This is the first deed to contain a metes and bounds description using coordinates. It also makes no reference to the prior chain of title with the standard "being the same premises" clause to identify how the sellers to Berman acquired the property.

A review of the metes and bounds description in the Berman deed discloses several errors, which will probably require a correction deed to be filed. For instance, Alden Place becomes Alden Street and Arnold Street is referred to as Arnold Avenue. A bigger problem is the sixth course which has the property line running "through the middle of Alden Street" when in fact the proper reference is Arnold Street. This is confirmed by the courses before and after it referencing Arnold Street and also by reading the description against the tax map plaintiff supplied. Hopefully this was a typographical error and not a deliberate attempt to create the impression that Berman was acquiring a right in the unopened Alden Place. Perhaps some of this confusion arose from the deed listing the [*4]sellers' address as 196 Arnold Avenue, and not Arnold Street. The record and return on Berman's deed is directly to Berman and not to an attorney.

Because the plaintiff failed to do a complete chain of title, the court conducted its own search of the County Clerk records to try establish how title was transferred from Jacob Symonds to Marinakis. The record disclosed the following:

Sevasti Marinakis, Christos Marinakis and George Marinakis acquired title as joint tenants, from Theodore Marinakis and Sevasti Marinakis, his wife, by deed dated May 6, 1964 and recorded May 18, 1964.

Theodore Marinakis and Sevasti Marinakis, his wife, acquired title from Nunziata Carannante, by deed dated July 10, 1951 and recorded July 13, 1951.

Nunziata Carannante acquired title from Frederick Roberts Graves by deed dated November 18, 1942. There is no recording information visible on the deed.

Frederick Robert Graves acquired title from Florence B. Leggett by deed dated July 19, 1938. It too lacks ant recording information, but rather than referencing the Arnold map of 1872, it cites a map dated March 1886, done by George Root as the surveyor of land belonging to Francis S. Kinney, Esq. It conveys any "right, title and interest" Leggett had in an "unopened" Arnold Street. The description only mentions the northerly side of Third Avenue as being the southerly boundery of the property. There is no reference to any "right, title or interest" in Third Avenue being conveyed.

In June, 1928, Leggett acquired title to Lots 66 & 68 by a referee's deed.

The search did not reveal how title to the balance of the Berman property got from Symonds in 1873 to Leggett prior to 1928.

None of the deeds between Graves in 1942 and Marinakis in 1964 contain a metes and bounds description using coordinates. This metes and bounds description with coordinates is included only in the deed to Berman. The legal description in all the prior deeds references the lots on the Arnold map filed with the County Clerk in 1872, the distances along those interior lot lines and distances along Arnold Street and Third Avenue. Interestingly, these descriptions in Berman's chain of title state that both Arnold Street and Third Avenue are "not physically opened or in use." None of the deeds in the Berman chain of title mention access through Alden Place, although some of them do recognize access through Arnold Street. It should be noted that the deeds in Berman's chain of title from 1951 and 1964 have an addendum to the description that Arnold Street is now open. No such addendum has been applied to Third Avenue/Alden Place.

Legal Issues Presented:

A. Does Plaintiff Have An Ownership Interest in Alden Place?

A review of the deeds affecting both the property of plaintiff and defendant shows that the Third Avenue/Alden Place is entirely within the property lines of the CAS. Unlike Arnold Street, where plaintiff by deed acquired rights to the center line of Arnold Street, no such conveyance exists in the chain of title in regard to Alden Place. Nor is there a specific recorded easement creating any rights of plaintiff, as the dominant tenement, in the property of defendant, as the servient tenement, which would give the plaintiff an easement of record.

B. Does Plaintiff Have An Easement?

Plaintiff alleges that various New York City agencies have informed him that in order to develop the property as he proposes, keeping the building that is currently there and adding five other houses on a subdivided lot, he will have to open and develop the mapped street listed on the Arnold map from 1872 as Third Avenue and on current maps as Alden Place. As noted below, in addition, plaintiff apparently will have to extend Arnold Street to the west as it has never been opened to its mapped length as it stops at a spot along his property line

In order to open Alden Place, plaintiff needs either permission from CAS to enter their land and construct the road, as the property where the proposed street is located is entirely within land currently owned by CAS, or plaintiff may obtain a court order declaring the existence of an easement in his favor. The law recognizes several types of easements. As there is no specifically recorded easement granting this right to the plaintiff, the court has to determine if either an implied easement exists or an easement by necessity.

1. Implied Easement.

Where a street or other way is designated as a boundary in a conveyance of real property, and the grantor in the conveyance owns in fee the land represented as the street or way, that grantor is generally estopped to deny the street or way exists for the benefit of the grantee. An easement by implication exists in the grantee and its successors. This rule has been applied even where the street in question is merely proposed and does not exist in fact [49 NY Jur 2d Easements §51]. Because the entire property was owned originally by Arnold and sold first to plaintiff's predecessor in title, Symonds, prior to the southerly portion being sold by Arnold's heir to the Harts, plaintiff contends he has an easement by implication.

However, this rule is not absolute. If a street is used as a boundary in the description of the property in the conveyance there is no implied covenant that the street still exists and remains open where only the exterior lines of the abutting street are used as a boundary. In these situations, the reference to the street is only descriptive and no warranty of the existence of an easement is implied. [49 NY Jur 2d Easements §51, §52, §57]. This is the fact situation in this litigation.

Although most of the cases that discuss the issue of whether the rule is absolute, seem to find that there was a right to access the proposed street, there are cases that have determined that no easement exists when the property has access to another street and the [*5]deed description contains a metes and bounds description with reference to the final map and proposed street being included merely as a convenient way of identifying the location [Matter of City of New York, 242 AD 378 (1934)]. The key in most litigation is establishing the "intention of the parties" at the time of the initial mapping and conveyance.

A review of the deeds submitted by the plaintiff to establish his chain of title and those the court found in the public record, indicate that there is no mention of any "right, title or interest, if any," of a party in the Berman chain of title "in and to any streets and roads abutting the above described premises to the center lines thereof" until the deed dated May 6, 1964 makes reference only to Arnold Street. No deed before 1964 mentions the conveyance of any interest of any kind in any street or road except as it may exist in Arnold Street, as opened, so as to have access to a private driveway.

In fact, none of the conveyances in the plaintiff's chain of title reference an interest to the center line of Alden Place. All the description reference Third Street/Alden Place only as a southerly boundary line. Because no prior deed contained such a grant of rights in the unopened street, a subsequent deed cannot create that right absent some change in circumstances, such as the opening and building of the mapped street, which did not happen here, or a specific grant of that right from CAS to Berman's predecessors in title [Ingold v Tolin, 12 App Div3d 407 (2004)]. Also an event that did not occur.

Real Property Law §251 "Covenants not implied," provides: " A covenant is not implied in a conveyance of real property, whether or not the conveyance contains any special covenants or not." Because an easement is not specifically conveyed in Alden Place in any of the prior deeds, the inclusion of language referencing access to right, title and interest in the streets and roads abutting the property does not in and of itself create such an interest. There is no separate covenants recorded against either property establishing an easement in Alden Place for the benefit of plaintiff's property. So there is no easement of record. Thus plaintiff is required to establish an implied easement exists.

The current maps of the area show that Arnold Street is not open for the length set forth on the 1872 map. It is open as a street only for about 250 feet from the beginning at the westerly side of Lafayette Avenue. The opened street terminates about 50 feet into plaintiff's property. It does not extend to meet with Ellicott Place as planned on the Arnold map. Arnold Street as it exists was adopted by the City on July 20, 1972 and there is a corporation counsel's opinion letter in that regard from April 22, 1993.

Alden Place is not open no and has never been open and shows on the Arnold map with a proposed width at each end of 50 feet. There is no "opinion of dedication" from the corporation counsel that the street is open and a continuously traveled street dedicated for public use [15 Rules of the City of New York (RCNY) §23-01(b)(25)]. Alden Place appears more likely to be classified as an "internal private road" [15 RCNY§23-01(b)(20)] rather than a "finally mapped street" [15 RCNY §23-01(b)(16)]. In fact many of the exhibits submitted by both parties acknowledge that there is no "final map" for Alden Place west of Lafayette Avenue.

The question must then be asked, does the proposed width of Alden Place on the 1872 map meet current municipal standards? Because the proposed Alden Place is designed to have a "dead end" other issues arise. Is it wide enough for fire trucks or sanitation vehicles to provide services to homes to be built by plaintiff or other landowners with a potential right to use the Alden Place plaintiff wants to construct? If a cul de sac is required to provide an area for these vehicles to turn around at, from whose property will that land be taken and at whose expense? The Alden Place of 1872 does not require the owner of the proposed street to contribute any more land than is set forth on that map. No cul de sac is provided for on that map. Construction of a cul de sac at the west end of Alden Place would require taking land from the defendant or some third party who owns the land between that of plaintiff and that of CAS.

The original 1872 map envisioned a community on 25 foot by 100 foot lots. In excess of 300 lots were carved out by Arnold for development. In actuality, a current map does not show any homes being built on a lot of 25 foot frontage. If the building code at that time required lots with a wider frontage, presumably Arnold would have had to have indicated that on the map. Otherwise, a potential buyer would have to purchase two lots in order to build a house. That does not make sense. The only conclusion to be reached is that although the map was filed in 1872 with a particular development plan in mind, that plan was never adopted and in fact was abandoned. The neighborhood did not develop as tract housing. It has older homes, many over 100 years of age, on large lots.

Plaintiff's property, Block 95 Lot 15, is a prime example of the abandonment of the Arnold plan because it measures 168 feet by 200 feet, a lot size inconsistent with the 25 foot by 100 foot layout of Arnold. It establishes that shortly after Arnold filed this map, the lot layout was abandoned when portions of lots were chopped up to be sold. Otherwise plaintiff would have either purchased 150 feet or 175 feet of property with frontage both on Arnold Street and Alden Place. Symonds acquired this non-tract property from Arnold in 1873, about one year after this tract development was proposed.

The abandonment of the Arnold plan and the combination of in excess of 12 Arnold plan lots into the one Block 95 Lot 15 of 33,000 square feet owned by plaintiff eliminated the necessity to have ingress and egress onto the proposed Alden Place. Plaintiff purchased this property containing a house and garage and known as 196 Arnold Street. It was built prior to January 1, 1938 as there is no certificate of occupancy for the house and garage on that plot. A certificate of occupancy was issued in 1951 converting an existing one family home into a two family dwelling. This filing also included a two car garage. The certificate of occupancy notes: "The garage driveway is situated on a street designated as not legal. When the street is dedicated to the city an additional $5.00 will be paid". The street referred to is Arnold Street. No mention of access through Alden Place is contemplated.

Plaintiff has gotten what he bargained for, a piece of property 168 feet by 200 feet with access for that one lot through Arnold Street. The fact that plaintiff wants to develop the property by subdividing it into six lots to maximize his profits, is not a reason to either [*6]compel the defendant to open Alden Place or to permit him to construct the street by finding an implied easement exists.

This, easement, if it ever existed has been abandoned. For the 130 years before plaintiff obtained title to the property no one sought to enforce the potential easement. The lots, to which access to Alden Place would have been necessary to comply with the Arnold plan in 1872, ceased to exist and were combined into one lot, perhaps with the initial transfer to Symonds in 1873, with the property utilized as either a one or two family dwelling. Plaintiff when he purchased the property was aware that Alden Place, although on a map from 1872, did not exist as an open street. An easement no matter how it was created, may be extinguished by abandonment [DeCesare v Feldmeier, 184 AD2d 220 (1992)].

As noted by the court in Chevere v City of New York, 31 Misc 3d 337 (2010) in dealing with a mapped, unbuilt, and unopened street dedicated to the City, "a half century is an unreasonable amount of time to hold a decision in abeyance on building a road" and the failure to use it as it was supposed to be used when first mapped cannot go on forever. The court using its equity powers voided the map with the unbuilt street permitting the owner of adjacent property to sell the property in the bed of the mapped, unopened street. Here, the plaintiff is seeking to open a mapped unbuilt street after 130 years. It is inequitable to change the status quo of Alden Place after that length of time.

Ownership of Third Avenue/Alden Place, has been by CAS since obtaining title from the Goodhue family. Alden Place has never existed as an open street. It has been a paper street from its creation and reference to it in the deeds of record are only for the purpose of establishing a southerly boundary for plaintiff's property and a northerly boundary of defendant's. It has never been dedicated to the City of New York as a public street and a municipality has no obligation to open what has mapped only as a paper street[Headley v City of Rochester, 272 NY 197 (1936)].

Plaintiff has failed to establish an implied easement exists.

2. Easement by Necessity.

An easement by necessity arises by operation of law when land is completely shut off from access to a road thereby rendering the property unusable because the owner cannot get access unless the owner crosses another person's property. This is not a situation where an easement by necessity exists as the property is accessible from Arnold Street, the same way it has been for at least seventy years, if not longer. The access to the property only from Arnold Street has been part of the chain of title since at least 1942. Because the court was not able to locate all of the deeds between Symonds and Graves, it cannot determine if that access existed prior to 1942 in deed descriptions. There is no need to access the property by opening Alden Place solely to allow the petitioner to maximize his profits. Plaintiff has the same Arnold street access which existed when he purchased and which affected the property for at least three generations.

Plaintiff has failed to establish an easement by necessity exists.

3. Easement by Prescription.

The law also recognizes the existence of prescriptive easements when one property owner uses another's property in an open, notorious, adverse and continuous manner for the statutory period. This is not a situation where plaintiff can claim the existence of a prescriptive easement. Although Alden Place is not open, there is no showing that either Berman or any of his predecessor's in title ever sought either by legal proceedings to assert a right to access through Alden Place, or to create their own right of way by using the area of the mapped Alden Place for access to their property. The land is owned by CAS and has remained undeveloped. In fact, the terrain where Alden Place should be, is of such a nature, that anyone attempting to use it for access to the properties north of the unopen mapped street would have to undertake a considerable expense to do so. There is no evidence that anyone has ever sought to use Alden Place in any manner.

Plaintiff has failed to establish a Prescriptive easement exists.

C. Are There Any Deed Restrictions Affecting the Property?

The deed from Sarah Goodhue dated June 1, 1912 which conveyed the property to CAS contained a restriction that if the property were leased, sold or ceased to be used by CAS for the care and education of children, during the lifetime of Alice Wolcott King widow of the Charles Goodhue King, the grandson of Sarah Goodhue, then "title to such real property shall immediately vest in said Alice Wolcott King in fee simple absolute...."

Although it is unlikely that Alice Wolcott King is still alive, if she is, then requiring CAS to open Alden Place not for the benefit of CAS but for the benefit of plaintiff, a third-party seeking to diminish the CAS holdings by up to 33,000 square feet (the product of the length and width of the proposed Alden Place) solely for private gain might trigger the reversion of the entire Goodhue property as set forth in the deed.

Even if Alice Wolcott King is deceased, the deed states that the intent of the conveyance to the CAS is to benefit children and that the land should be used for their education and care. Although the reversion may no longer be applicable, the mere fact that it exists, requires that the plaintiff make some showing that CAS will benefit from him building Alden Place as it appears on the Arnold map. The clear intent of the deed transfer to CAS from the Goodhue family is to benefit children, something all of the adjacent property owners prior to plaintiff have respected for over one hundred years.

The court is not convinced that CAS will benefit from allowing plaintiff to have an easement to build Alden Place. In fact, if plaintiff is correct, there is no need to even compensate CAS for the fair market value of the property it would be forced to give plaintiff access to in order to build Alden Place. There is sufficient concern that the remaining CAS property and perhaps other landowners abutting the paper Alden Place with presumably the same rights to have the street developed as plaintiff, would somehow [*7]be negatively impacted owing to the topography of the area where the proposed street would be located.

D. Other Restrictions on the Property.

Both the entire Berman and CAS parcels are within the Special Hillside Preservation District established for this area of the North Shore of Staten Island. This designation places certain restrictions on land use and development.

The area is currently zoned R1-2, a designation that permits construction of single-family detached residences. This zoning requires lots of a minimum of 5,700 square feet with a minimum lot width of 60 feet. Plaintiff's property, block 95 lot 15 is approximately 33,600 square feet. Plaintiff has proposed subdividing the property into a total of six lots. Plaintiff is apparently retaining the current dwelling as lot 15, and creating two other lots fronting on Arnold Street on either side of a new lot 15 with designations as lot 14 and lot 17. These lots would have lengths of 100 feet. Plaintiff also seeks to create three lots fronting on the proposed constructed Alden Place. They are designated as lots 52, 53 and 55 and would also be 100 feet in length.

This being the case, the court must question how plaintiff plans to accomplish this development scheme absent obtaining a variance through the municipal planning process.

Under the current zoning regulations to develop six lots with a minimum lot size of 5,700 square feet, plaintiff would need 34,200 square feet of land. If the property totals 33,600 square feet, six houses cannot be built. In addition, the zoning regulation require a minimum lot width of 60 feet. Plaintiff's property is 168 feet in width. Dividing that into three lots has each lot with a width of 56 feet. Again this is not in compliance with the zoning regulations as it violates lot width requirements.

Based on the foregoing, there is no need for the court to permit the construction and opening of Alden Place, so as to construct houses which either require a variance to be obtained or would violate the law if built as planned. Plaintiff has indicated that he also owns lot 29 on this block. This is an "L" shaped parcel fronting on Lafayette Avenue, Arnold Street and the unopened Alden Place. The court must question why plaintiff has not asserted any rights to Alden Place in connection with lot 29, unless he believes he will gain access to Alden Place if he succeeds in regard to lot 15, as lot 29 is east of lot 15. There is another lot, number 25, between the two Berman parcels owned by a third-party.

Without the existence of the variance and having plaintiff complete the process to obtain permission to subdivide the property as he proposes and develop it with more housing than currently exists, the court must deny the application for an easement at best as premature and at worst in its entirety as it would be detrimental to the character of the neighborhood as it currently exists.

E. Plaintiff's Damage Claims.

Plaintiff asserts it is entitled to actual damages owing to defendant's failure to consent to plaintiff opening and constructing Alden Place and for engaging in tactics causing the plaintiff to lose the sale of the property to a potential purchaser. Plaintiff also is seeking punitive damages.

Plaintiff's claims are denied on the merits. Plaintiff incurred expenses and spent a great deal of time obtaining approvals which it could have avoided simply by reading its title report or the property description in the deed history (a public record) and actually visiting the site. It is obvious that no actual street exists where Alden Place appears on the Arnold map. It is also obvious that plaintiff has no ownership right in that paper street nor did it have a recorded easement giving it access to Alden Place. At best plaintiff would have to establish either an implied easement or an easement by necessity in a legal proceeding once CAS declined to give plaintiff access. The court has determined that no easement exists in plaintiff's favor.

As set forth above, plaintiff has no easement of any nature in Alden Place. The fact that it operated under a misapprehension of its rights does not create any liability on CAS. Many of the approvals obtained by plaintiff which appear to have created some sort of an impression of rights in Alden Place in favor of plaintiff are the result of improper and incomplete information being provided to City agencies. Plaintiff is an experienced real estate developer and should have known to act based on the information he had in his possession was not warranted. Attempting to get municipal approvals prior to clarifying what rights, if any, plaintiff had in the unopened Alden Place, was a business risk plaintiff has assumed. There is no documented evidence that he lost the opportunity to sell the property to another developer because of defendant's actions or lack thereof. Plaintiff is not entitled to any damages from CAS.[Gowanus Industrial Park, Inc. v City of New York, 15 App Div3d 311 (2005)].

All claims for damages and punitive damages are dismissed.

Conclusion:

Although Third Street/Alden Place exists on a filed map from 1872, the street was never opened and exists only as a "paper," unopened street not dedicated to the City of New York or subject to any use by the public or abutting property owners. The Arnold map with its development plan was never put into effect and was effectively abandoned by Arnold and all subsequent purchasers.

Plaintiff has no ownership interest in the Third Street/Alden Place.

Plaintiff has no easement of record in Third Street/Alden Place.

Plaintiff has no implied easement, easement by necessity or any other category of easement in Third Street/ Alden Place.

Defendant is the owner in fee of Third Street/ Alden Place. It has no legal obligation to provide access to that area of its property for plaintiff to develop his property.

Defendant is authorized to demap Third Street/Alden Place. Any stays in that regard are lifted.

Plaintiff has adequate access to Arnold Street to develop his property in a manner consistent with zoning. This litigation may in fact be premature in that although he has made allegations that the City of New York would deny development from Arnold Street, there is no showing that he ever pursued that plan with the City of New York, had it denied and exhausted his administrative remedies in that regard.

Plaintiff's claim for damages and punitive damages are dismissed on the merits. Any delays in pursuing his development plans arose from him misinterpreting his rights in regard to Third Street/Alden Place. Defendant has no liability in that regard.

Plaintiff's cause of action is dismissed on the merits.

All other applications before the court are rendered moot and will not be addressed by the court.

ENTER,

DATED: December 23, 2014

Hon. Philip S. Straniere

Acting Justice of the Supreme Court Footnotes

Footnote 1: Fortunately this map and several deeds relevant to this litigation are available as public records. They were not destroyed in the fire which started when the San Francisco earthquake, frightened Mrs. O'Leary's cow, who kicked over a lantern starting the Chicago fire, which spread to the munitions factory on Black Tom Island in New York Bay off Jersey City, the sparks of which burnt down the St. George Ferry Terminal where the Richmond County clerk stored all its real estate records. If you are skeptical about the fire destroying all land records and building department files before 1938 just ask a local broker or real estate attorney.