Bikes By Olga LLC v. People

Decision Date24 October 2022
Docket Number506816/21
Citation2022 NY Slip Op 33668 (U)
CourtNew York Supreme Court
Unpublished Opinion



The plaintiff has moved pursuant to CPLR §3212 seeking summary judgement on the third cause of action for trespass. The City of New York has opposed the motion arguing the City has an easement and thus cannot be liable for any trespass. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.

As recorded in a prior order, on June 3, 2019 the plaintiff purchased property located at 353 Berry Street in Kings County at a tax foreclosure auction for $2.3 million and the deed was recorded a few days later on June 13, 2019. The City of New York acknowledged the property was being used by the Department of Transportation and in light of the plaintiff's ownership of the property began negotiations for the withdrawal of such use. On December 23, 2020 the City of New York presented plaintiff with a Notice of Appropriation which demonstrated that through eminent domain the State of New York had taken possession of the property in 1992. On October 18, 2021 this court issued a decision granting summary judgement and essentially holding there were no questions of fact the plaintiff was the owner of the property. The plaintiff has now moved seeking a determination the City committed trespass by maintaining commercial trucks and other vehicles on the property. Thus Joel Wertzberger a manager of the plaintiff has submitted an affidavit wherein he states that since the plaintiff purchased the property on June 3, 2019 the City's vehicles have been unlawfully parked on his property constituting a trespass. Furthermore, the plaintiff argues the City should compensate the plaintiff for the use of plaintiff's property. The City has opposed the motion arguing an easement recorded in a deed dated July 12., 1983 permits the City to utilize the property for its maintenance of the Williamsburg Bridge.

Conclusions of Law

Where the material facts at issue in a case are in dispute summary judgment cannot be granted (Zuckerman v. City of New York, 49 N.Y.S.2d 557, 427 N.Y.S.2d 595 [1980]). Generally, it is for the jury, the trier of fact to determine the legal cause of any injury, however, where only one conclusion may be drawn from the facts then the question of legal cause may be decided by the trial court as a matter of law (Marino v. Jamison, 189 A.D.3d 1021, 136 N.Y.S.3d 324 [2d Dept., 2021).

An easement generally entitles a party to an interest in land owned by another person and enables the holder of the easement to use or control the land for a specific and limited purpose (see, Sutera v. Go Jokir Inc., 86 F.3d 2 98 [2d Cir. 1996]). Thus, it is more than the mere privilege to use the land, it is an interest in the land (id). It is well settled that "there are two types of express or record easements: (1) an easement appurtenant which contemplates a dominant and a servient, estate and provides an interest in land; and (2) an easement in gross which is a personal, non assignable, noninheritable privilege or license'' (see, Koepp v. Holland, 688 F.Supp.2d 65 [N.D.N.Y. 2010]). Concerning an easement appurtenant, a parcel of land that benefits from an easement is known as the dominant estate whereas the parcel being burdened is known as the servient estate (Strnad v. Brudnicki, 200 A.D.2d 735, 606 N.Y.S.2d 913 [2d Dept., 1994]). Regarding an easement in gross there is no dominant estate, rather only land, the servient estate, is burdened. This rare easement thus permits the holder to use the land of another even though the holder does not own a dominant estate (see, U.S. v. Turoff, 701 F.Supp. 981 [E.D.N.Y. 1988]).

Unlike other states that define whether an easement is appurtenant or in gross (see, Cal. Civ. Code §§ 801, 802; Mont.Code Ann. §§ 70-17-101, 70-17-102; N.D. Cent. Code §§ 47-05-01, 47-05-02; Okla. Stat. Ann. tit. 60, §§ 4 9, 50; S.D. Codified Laws §§ 43-13-1, 43-13-2; 21 Guam Code Ann. §§ 7101, 7102) New York courts examine the express language of the easement "to give effect to the [conveyors'] intent, as manifested by the language of the grant" (see, Stone v. Donlon, 156 A.D.3d 1308., 69 N.Y.S.3d 115 [3rd Dept., 2017]). The case of Niceforo v. Haeussler, 276 A.D.2d 949, 714 N.Y.S.2d 788 [3 rd Dept., 2000] is instructive. In that case an easement for the use of a driveway existed between, two adjacent neighbors. One neighbor argued the easement was an easement in gross which extinguished upon the sale of the property to others. The court disagreed. The court explained that the easement was created "for the benefit of the dominant estate (now plaintiffs' land) burdening the servient estate (now defendant's land)" (id). Thus, where the easement services another (dominant) estate the easement is classified as appurtenant. Indeed, although courts refer to them as easements, strictly speaking an easement in gross is not an casement at all but a personal privilege or license to use the land of another (Loch Sheldrake Associates v. Evans, 306 NY 297, 118 N.E.2d 444 [1954]). Examples include the right to place telegraph poles on property (Antonopulos v. Postal Telegraph Cable Company, 261 A.D. 564, 26 N.Y.S.2d 403 [2d Dept., 1941] and the right to place signs on a wall or fence on another's property (XAR Corp., v. Di Donato, 76 A.D.2d 972, 429 N.Y.S.2d 59 [3rd Dept., 1980], Whitmier and Ferris Company v. State of New York, 12 A.D.2d 165, 209 N.Y.S.2d 247 [4 th Dept., 1961]).

The deed recorded in 1983 states that it is "subject to easement for maintenance of the Williamsburg. Bridge" (see, Deed, included as Exhibit 1 to Defendant's Motion in Opposition, [NYSCEF #153]). Thus, by its very terms the easement services the Williamsburg Bridge, the dominant estate. The plaintiff argues that "the City failed to identify a dominant estate that the easement serves,: which defeats, as a matter of law, its defense to Plaintiff's trespass claim" (Reply Memorandum, page 4 [NYSCEF Doc. #159]). However, the plaintiff acknowledges the easement is intended to conduct maintenance on the bridge and fails to remove any questions of fact why the bridge cannot serve as the dominant estate.

The plaintiff next argues that even if the easement is an easement appurtenant the easement extinguished when the City foreclosed upon the parcel. The plaintiff asserts, that when one entity owns both the dominant and servient estates then the easement extinguishes (see, generally Will v. Gates, 89 N.Y.2d 778, 658 N.Y.S.2d 900 [1997]). Thus, the plaintiff asserts that "the dominant and servient interests merged into one owner (the City)" (see, Memorandum in Reply, page 5, supra), Thus, an examination of whether the entity that foreclosed upon the property, namely NYCTL 2016-A TRUST, is the same entity as the City of New York. If the two...

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