Stone v. Donlon

Appeal from an order of the Supreme Court (Nolan Jr., J.), entered April 14, 2017 in Saratoga County, which, among other things, partially granted defendant’s motion for summary judgment dismissing the amended complaint.

This appeal involves adjoining parcels of land in the City of Saratoga Springs, Saratoga County. The property owned by plaintiff fronts Maple Avenue, while the property owned by defendant is situated on the corner of Maple Avenue and Green Street. In 1944, the parcels of land now owned by plaintiff and defendant were commonly owned by Leo Germanetti and Anne Germanetti. In 1952, the Germanettis conveyed the parcel of land now owned by defendant to Victor Esposito. In the 1952 conveyance, the Germanettis “reserve [d] to themselves an easement or right-of-way for ingress and egress from Green Street to the garage and woodshed located” in the rear of their adjoining property (hereinafter referred to as the Green Street easement), as well as another easement not particularly relevant to this appeal (hereinafter referred to as the Maple Avenue easement). Plaintiff acquired title to his property in 1979,^[1] and defendant acquired title to her property in 2015. There is no dispute that each deed in plaintiff’s chain of title included language conveying “all easements and rights of ways reserved” in the 1952 deed from the Germanettis to Esposito or that each conveyance in defendant’s chain of title was subject to the Green Street easement.

In June 2016, plaintiff commenced this action against defendant seeking, among other things, a declaratory judgment that defendant’s property was burdened by the Green Street and Maple Avenue easements, as well as injunctive relief

We affirm. An easement appurtenant, such as the one at issue on this appeal, is created through a written conveyance, subscribed by the grantors, that burdens the servient estate for the benefit of the dominant estate (see Webster v Ragona, 7 AD3d 850 , 853 [2004]; Stasack v Dooley, 292 AD2d 698 , 699 [2002]; Niceforo v Haeussler, 276 AD2d 949 , 950 [2000]). An easement expressly created for, or limited to, a specific purpose may be extinguished by the abandonment of that purpose (see People v Byrneses-On-Hudson, Inc., 226 AD2d 353 , 354 [1996]; Clarke v Keating, 183 App Div 212 , 213-214 [1918]; Norris v Hoffman, 133 App Div 596 , 600-601 [1909], affd 197 NY 578 [1910]), which must be demonstrated through “unequivocal” acts establishing that the owner of the dominant estate intended to “permanently relinquish all rights to the easement” (Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35 , 39-40 [1986]; see Gerbig v Zumpano, 7 NY2d 327 , 331 [1960]). In determining the nature and extent of an express

It is clear from the unambiguous language in the 1952 deed from the Germanettis to Esposito that the Germanettis, as the dominant estate holders, intended to reserve to themselves a limited right-of-way over the servient estate as a means of ingress and egress to the garage and woodshed that was, at that time, situated on their property (see Mitkowski v Marceda, 133 AD3d at 575-576 ; Norris v Hoffman, 133 App Div at 600; compare Niceforo v Haeussler, 276 AD2d at 951 ). The language of the express easement does not, as plaintiff argues, evidence an intention to create an unrestricted and unqualified right-of-way over the servient estate to access the rear of the dominant estate (see Mitkowski v Marceda, 133 AD3d at 575-576 ; compare Niceforo v Haeussler, 276 AD2d at 951 ). As such, we agree with Supreme Court that the Green Street easement was created for the limited and specific purpose of providing access to the garage and woodshed on the dominant property.

The question then becomes whether the Green Street easement has been extinguished by virtue of plaintiff’s abandonment of the specific purpose for which it was created. To that end, defendant proffered several affidavits, as well as the deposition testimony of plaintiff and a 1980 survey of plaintiff’s property, which together established that the garage and woodshed no longer existed on plaintiff’s property. Specifically, Esposito’s brother^[3] averred that a “barn [-] like structure” that was present on the dominant estate burned down sometime in the mid-1950s and that, aside from a shed that belonged to his brother and was eventually moved, no similar structures were placed or erected on the dominant estate. Indeed, the 1980 survey of plaintiff’s property depicted a shed and “foundation remains,” and plaintiff testified at his deposition that there was no structure on the “foundation remains” when he purchased the property in 1979. Plaintiff also confirmed that a shed belonging to Esposito was on his property and that Esposito “had to move it.” Plaintiff asserted that he never endeavored to rebuild a structure over the foundation remains. Finally, in their respective affidavits, a neighbor whose property adjoined plaintiff’s property and a neighbor whose prop

In opposition, defendant relied on her own deposition testimony and affidavit, the 1980 survey of plaintiffs property, a 2015 survey of her property and the affidavits of Esposito’s brother, several neighbors and the 2015 surveyor. Esposito’s brother asserted that the right-of-way was full of vegetative overgrowth, that he never observed the alleged right-of-way cleared of snow or used by vehicles and that he never saw a dumpster placed on plaintiff’s property. Similarly, each of the neighbors averred that they never observed a dumpster on plaintiff’s property or saw a vehicle traverse the alleged right-of-way. In particular, the owner of a property that adjoined plaintiff’s property stated “unequivocally” that, since purchasing his property in 1964, he had never seen a dumpster on plaintiff’s property or a vehicle use the purported right-of-way, which he described as overgrown and full of miscellaneous junk. Consistently, the neighbors who sequentially owned the property directly across the street from the claimed right-of-way—from 1996 through 2014 and from 2014 through the submission of defendant’s motion—stated that they never saw any vehicles travel over the alleged right-of-way, which was full of junk and thick overgrowth and was not cleared in the winter. They also stated that a wire fence ran across the boundary line separating plaintiff’s and defendant’s respective properties. Significantly, the 1980 survey and the 2015 survey depicted a wire fence crossing the alleged right-of-way along the parties’ common boundary line. The individual who prepared the 2015 survey, as well as defendant, averred that the wire fence was rusted, upright and roughly three feet high. Video footage of the parties’ properties from September 2016 evidenced the maple tree and the thick overgrowth.^[4]

In its decision and order resolving the parties’ respective motions, Supreme Court expressly found plaintiff’s deposition “testimony that he regularly and consistently used the easement from 1979 to 2015 to remove and replace a 10[-]yard container” to be “incredible as a matter of law.” In so holding, the court relied on, among other things, the June 2016 video and affidavit evidence produced by defendant, which established the existence of dense vegetation over the disputed prop