PARISI SON CONSTRUCTION CO INC v. ADIPIETRO (2005)

In an action, inter alia, to enjoin the defendants in Action No. 1 from entering upon certain real property, and a related action, inter alia, pursuant to RPAPL article 15 for a judgment declaring the validity of an easement, M. Parisi & Son Construction Co., Inc., the plaintiff in Action No. 1 and a defendant in Action No. 2, appeals from an order of the Supreme Court, Suffolk County (Lifson, J.), dated February 25, 2004, which, upon a decision of the same court also dated February 25, 2004, granted the motion of Salvatore Adipietro, a defendant in Action No. 1 and the plaintiff in Action No. 2, and the separate motion of Ninety Four Associates, Inc., and Mennuti Realty Corp., defendants in Action No. 2, for summary judgment declaring the validity of the easement and awarding a permanent injunction enjoining it from obstructing or otherwise interfering with the use of the subject easement and dismissing Action No. 1.

ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring the validity of the easement.

The parties to these appeals are successors in title to certain lots originally conveyed by Mastic Acres, Inc. (hereinafter the Grantor), the developer and filer of a subdivision map entitled “Map of Mastic Acres, Unit 16,” filed in 1947.   The appellant owns land specifically delineated on the Map of Mastic Acres, Unit 16, as a parking field and a street called Bobbikar Lane, which was to provide access to the parking field.   Salvatore Adipietro (hereinafter the plaintiff), a defendant in Action No. 1 and the plaintiff in Action No. 2, owns lots abutting the parking field and asserts that he has an easement over Bobbikar Lane and the parking field.

The plaintiff alleged sufficient facts to establish a prima facie showing of his entitlement to summary judgment (see Will v. Gates, 89 N.Y.2d 778, 783-784, 658 N.Y.S.2d 900, 680 N.E.2d 1197;  see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The plaintiff's title is derived from a 1948 deed by the Grantor which conveyed certain specifically described lots in the Map of Mastic Acres, Unit 16, together with the “full right to use the streets and avenues in the said sub-division, for ingress to and egress from any place in the same.”   All subsequent conveyances, including that to the plaintiff, contained specific references to the filed subdivision map and the phrase “[t]ogether with the appurtenances and all the estate and rights of the party of the first part in and to said premises” as required by Real Property Law § 255, without any exclusions.   One of the prior conveyances in the plaintiff's chain of title included the aforesaid language granting the easement for ingress and egress.

 The law is clear that “when property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant” (Bogan v. Town of Mt. Pleasant, 278 A.D.2d 264, 264-265, 718 N.Y.S.2d 181;  see Sullivan v. Markowitz, 239 A.D.2d 404, 658 N.Y.S.2d 634;  Fischer v. Liebman, 137 A.D.2d 485, 487, 524 N.Y.S.2d 720).   Here, the appearance of the subdivision map and the language contained in the deed permit the reasonable inference that in 1948 the Grantor intended to create an easement over Bobbikar Lane and the subject parking field (see Fischer v. Liebman, supra;  see also Will v. Gates, supra ).   The grant of right continued with each subsequent conveyance referencing the subdivision map (see Fischer v. Liebman, supra ).   Even absent these express references in the subsequent deeds, the easement appurtenant passed with each conveyance (see Will v. Gates, supra, citing Tabor v. Bradley, 18 N.Y. 109, 111).

The evidence submitted by the appellant failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The appellant asserts that the 1948 deed contained limiting language and that subsequent certificates of abandonment filed by the Grantor raised questions of fact as to the Grantor's intent.   This argument is unavailing and belied by the fact that the appellant's principal sought and obtained an abandonment of a portion of Bobbikar Lane from one of the other adjoining landowners in 1987 and attempted unsuccessfully to obtain an abandonment from the plaintiff later the same year.

 The grantees of lots abutting a street demarcated on a filed map are entitled to have the street remain as a street forever, absent abandonment, conveyance, condemnation, or adverse possession (see Fischer v. Liebman, supra at 488, 524 N.Y.S.2d 720).   Absent clear and unequivocal facts demonstrating an intent to permanently relinquish the grant of right, nonuse, even of substantial duration, alone will not establish abandonment (see Wallkill Farms Homeowners Assn. v. Velazquez, 205 A.D.2d 681, 682, 613 N.Y.S.2d 641;  Route 22 Assocs. v. Cipes, 204 A.D.2d 705, 706, 613 N.Y.S.2d 33), and the grant of easement “remains as inviolate as the fee favored by the grant” (Gerbig v. Zumpano, 7 N.Y.2d 327, 330, 197 N.Y.S.2d 161, 165 N.E.2d 178;  see Spier v. Horowitz, 16 A.D.3d 400, 791 N.Y.S.2d 156).   Since there was “no unity of title of all dominant and reviewed estates,” neither the abandonment of portions of the original subdivision plan in 1955 and 1962 nor the taking of a portion of the parking field for the construction of the William Floyd Parkway established an abandonment of the grants of right to the plaintiff or any other adjoining landowner who was not a party to those agreements (see Will v. Gates, supra at 784-785, 658 N.Y.S.2d 900, 680 N.E.2d 1197).

The appellant's remaining contentions are without merit.

Since Action No. 2 seeks declaratory relief, we remit the matter to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the easement is valid (see Lanza v. Wagner, 11 N.Y.2d 317, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).