B.J. 96 Corp. v. Mester

Decision Date07 December 1995
Citation222 A.D.2d 798,634 N.Y.S.2d 843
PartiesB.J. 96 CORPORATION, Respondent, v. John MESTER et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Ilana R. Schwitzer, New York City, for appellants.

MacVean, Lewis, Sherwin & McDermott P.C. (George F. Roesch III, of counsel), Middletown, for respondent.

Before CARDONA, P.J., and WHITE, CASEY, YESAWICH and SPAIN, JJ.

SPAIN, Justice.

Appeal from a judgment of the Supreme Court (Williams, J.), entered August 31, 1994 in Sullivan County, which granted plaintiff's motion for summary judgment.

Plaintiff and defendants own parcels of property in the Town of Bethel, Sullivan County, in an area near White Lake which is depicted on a map entitled "J.E. Gray, White Lake, Sullivan County, N.Y." and filed in the County Clerk's office on September 24, 1908. In 1969 plaintiff purchased lot Nos. 3, 4 [222 A.D.2d 799] and 5 as depicted on said map which abut the northerly side of Stewart Avenue, a paper street. Stewart Avenue provides east/west access from County Highway No. 141 to White Lake. Defendants, between 1975 and 1982, purchased lot Nos. 6, 7, 8, 9 and 16 as depicted on said map, which abut the southerly side of Stewart Avenue, and lot No. 2, which abuts the northerly side of Stewart Avenue. In or about 1987 defendants erected a fence around the perimeter of their property which included a padlocked gate at the end of Stewart Avenue which blocks entrance to Stewart Avenue from the highway.

In 1992 plaintiff commenced this action seeking, inter alia, to permanently enjoin defendants from interfering with its right of access to Stewart Avenue and compelling defendants to remove the fence insofar as it obstructs its access. In 1993 defendants recorded a deed which purports to convey to them title to Stewart Avenue with reference to the filed Gray map. Determining that plaintiff had an implied easement by grant over Stewart Avenue, Supreme Court, inter alia, granted plaintiff's motion for summary judgment and ordered defendants to remove the obstruction. Defendants appeal.

Defendants contend that there was no implied easement because the owner who originally subdivided the lots, John Gray, did not timely file the subdivision map; this issue was not raised before Supreme Court and therefore, has not been preserved for appeal (see, Deising v. Town of Esopus, 204 A.D.2d 940-942, 611 N.Y.S.2d 964; Marazzo v. Frontier Ins. Co., 189 A.D.2d 755, 756, 592 N.Y.S.2d 65; Gunzburg v. Gunzburg, 152 A.D.2d 537, 538, 543 N.Y.S.2d 474). However, it is settled law that "[w]hether an easement by implication has been created depends on the intention of the parties at the time of the original conveyance, 'with the most important indicators of the grantor's intent being the appearance of the subdivision map and the language of the original deeds' " (Clegg v. Grasso, 186 A.D.2d 909, 910-911, 588 N.Y.S.2d 948, quoting Firsty v. De Thomasis, 177 A.D.2d 839, 841, 576 N.Y.S.2d 454; accord, Heim v. Conroy, 211 A.D.2d 868, 870, 621 N.Y.S.2d 210; see, De Ruscio v. Jackson, 164 A.D.2d 684, 687, 565 N.Y.S.2d 593; Fischer v. Liebman, 137 A.D.2d 485, 487, 524 N.Y.S.2d 720; 2 Warren's Weed, New York Real Property, Easements, § 6.04 [4th ed]. The intention of the grantor is to be considered in light of the surrounding circumstances (see, Tarolli v. Westvale Genesee, 6 N.Y.2d 32, 34, 187 N.Y.S.2d 762, 159 N.E.2d 558; Fischer v. Liebman, supra, 137 A.D.2d at 487, 524 N.Y.S.2d 720); whether or not a map was filed, and if it was filed, by whom and when, are merely factors which may bear on the grantor's intent (see, Clegg v. Grasso, supra, 186 A.D.2d at 911, 588 N.Y.S.2d 948; De Ruscio v. Jackson, supra, 164 A.D.2d at 686-687, 565 N.Y.S.2d 593). In light of the language in the Gray deed and the fact that the map was eventually filed, coupled with defendants' concession regarding plaintiff's "deeded right to use" Stewart Avenue, we conclude that no triable issue exists and that Supreme Court correctly determined that plaintiff has an implied easement by grant (see, Fiebelkorn v. Rogacki, 280 App.Div. 20, 21, 111 N.Y.S.2d 898, affd 305 N.Y. 725, 112 N.E.2d 846).

Moving next to defendants' claim that plaintiff abandoned its right to use Stewart Avenue, it is well settled that an easement created by grant may be terminated by abandonment, yet the party so alleging must produce " 'clear and convincing...

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8 cases
  • Cashman v. Shutter
    • United States
    • New York Supreme Court — Appellate Division
    • April 18, 1996
    ...(see, Fiebelkorn v. Rogacki, 280 App.Div. 20, 22, 111 N.Y.S.2d 898, affd. 305 N.Y. 725, 112 N.E.2d 846; cf. B.J. 96 Corp. v. Mester, 222 A.D.2d 798, 799-800, 634 N.Y.S.2d 843, 845). Moreover, while the deed to the Cemetery Association did not denote that it was subject to an easement in fav......
  • Guardino v. Colangelo
    • United States
    • New York Supreme Court — Appellate Division
    • June 10, 1999
    ...(id., at 818, 542 N.Y.S.2d 405; see, Northern Blvd., City of N.Y. v. Mahoney, 258 N.Y. 136, 147, 179 N.E. 321; B.J. 96 Corp. v. Mester, 222 A.D.2d 798, 799, 634 N.Y.S.2d 843). Importantly, the paper street rule creates a property interest "in the nature of a private easement of ingress and ......
  • Lawson v. Lawson
    • United States
    • New York Supreme Court — Appellate Division
    • November 29, 2001
    ...Graphics so this issue has not been preserved for appeal (see, e.g., Larson v Albany Med. Ctr., 252 A.D.2d 936, 938-939; B.J. 96 Corp. v Mester, 222 A.D.2d 798, 799). We also find no error in Supreme Court's failure to order defendant to maintain life insurance to secure the awards of child......
  • B.J. 96 Corp. v. Mester
    • United States
    • New York Supreme Court — Appellate Division
    • June 10, 1999
    ...so far as it crosses Stewart Avenue and obstructs plaintiff's right of access to County Highway # 141". This court affirmed (222 A.D.2d 798, 634 N.Y.S.2d 843). Plaintiff thereafter brought this motion sub judice to compel defendants to remove the chain link fence blocking plaintiff's access......
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