Bigg v. Webb Properties, Inc.

Decision Date10 March 1986
Citation499 N.Y.S.2d 762,118 A.D.2d 613
PartiesMichael L. BIGG, Jr., Appellant, v. WEBB PROPERTIES, INC., Respondent.
CourtNew York Supreme Court — Appellate Division

William J. Larkin, III, Newburgh, for appellant.

Northrop, Strader & Glenn, Newburgh (Thomas N. O'Hara, of counsel), for respondent.

Before MOLLEN, P.J., and LAZER, KUNZEMAN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring that the plaintiff has an easement by implication on a portion of the defendant's property, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Burchell, J.), dated August 13, 1984, which, inter alia, granted the defendant's cross motion for summary judgment dismissing the plaintiff's complaint, and for judgment on the defendant's first counterclaim, and barred the plaintiff from any use of the defendant's property.

Judgment modified, on the law, by adding a provision thereto declaring that the plaintiff has no easement over the common driveway referred to in his complaint (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 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). As so modified, judgment affirmed, with costs to the defendant.

As a matter of law, the plaintiff failed to show by clear and convincing evidence (see, e.g., Bergner v. Kick, 85 A.D.2d 911, 446 N.Y.S.2d 787, affd. 56 N.Y.2d 795, 452 N.Y.S.2d 401, 437 N.E.2d 1158; Buck v. Allied Chem. Corp., 77 A.D.2d 782, 431 N.Y.S.2d 222; Zentner v. Fiorentino, 52 A.D.2d 1036, 384 N.Y.S.2d 297) that prior to subdivision and sale to the plaintiff Michael Bigg, Jr. and to the defendant Webb Properties, Inc., the prior owner of the properties in question created a use by which one part of the tract was subordinated to the other or that a reciprocal subordination was created. Specifically, the plaintiff failed to show that, prior to the subdivision of the properties in question, a driveway existed over the border between the two properties. Furthermore, the existence of the alleged easement was not plainly and physically apparent upon reasonable examination, nor was it necessary to the reasonable use and enjoyment of the property. Accordingly, the plaintiff failed to show the existence of an easement by implication (see, e.g., Abbott v. Herring, 97 A.D.2d 870, 469 N.Y.S.2d 268, affd. 62 N.Y.2d 1028, 479 N.Y.S.2d 498, 468 N.E.2d 680; Jacobson v. Luzon Lbr. Co., 192 Misc. 183, 79 N.Y.S.2d 147, affd. 276 App.Div. 787...

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4 cases
  • Pastore v. Zlatniski
    • United States
    • New York Supreme Court — Appellate Division
    • 11 Agosto 1986
    ...was necessary to the reasonable use and enjoyment of their respective parcels of real property (see generally, Bigg v. Webb Props., 118 A.D.2d 613, 499 N.Y.S.2d 762). Indeed, they admitted that their respective lots border upon a public thoroughfare. Hence, the defendants' use of the subjec......
  • Fischer v. Liebman
    • United States
    • New York Supreme Court — Appellate Division
    • 1 Febrero 1988
    ...of easements from an apparent pre-existing use on severance of title to land owned by a common grantor ( see, e.g., Bigg v. Webb Props., 118 A.D.2d 613, 499 N.Y.S.2d 762; Pastore v. Zlatniski, 122 A.D.2d 840, 505 N.Y.S.2d 903; Buck v. Allied Chem. Corp., 77 A.D.2d 782, 431 N.Y.S.2d 222; Abb......
  • U.S. Cablevision Corp. v. Theodoreu
    • United States
    • New York Supreme Court — Appellate Division
    • 15 Abril 1993
    ...there was no open and obvious laying of underground cables on the servient estate prior to separation (see generally, Bigg v. Webb Props., 118 A.D.2d 613, 499 N.Y.S.2d 762). Additionally, even assuming that plaintiff has established the elements for an easement by necessity, such an easemen......
  • Noll v. Weinman
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Septiembre 1998
    ...of parking and turning vehicles around (see, U.S. Cablevision Corp. v. Theodoreu, 192 A.D.2d 835, 596 N.Y.S.2d 485; Bigg v. Webb Props., 118 A.D.2d 613, 499 N.Y.S.2d 762). Thus, the defendants' third counterclaim was properly dismissed. Additionally, since no factual question was raised as ......

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