Fischer v. Liebman

Decision Date01 February 1988
Citation137 A.D.2d 485,524 N.Y.S.2d 720
PartiesArthur FISCHER, et al., Respondents, v. Irving LIEBMAN, Appellant.
CourtNew York Supreme Court — Appellate Division

Sive, Paget & Riesel, P.C. New York City (Eric Bregman and Pamela Esterman, of counsel), for appellant.

Esseks, Hefter & Angel, Riverhead (William W. Esseks and William Power Maloney, of counsel), for respondents.

Before MANGANO, J.P., and BROWN, RUBIN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to RPAPL article 15, inter alia, for a judgment declaring that the plaintiffs have an easement over a portion of the defendant's property, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Gerard, J.), entered May 5, 1987, which, inter alia, granted the plaintiffs' motion for summary judgment and denied the defendant's cross motion to dismiss the complaint.

ORDERED that the judgment is affirmed, with costs.

The parties are the fee owners of adjoining residential lots created by a subdivision map filed by the Suffolk, Nassau and Queens Realty Company in 1903. The filed subdivision map depicts a residential development comprised of 10 lots with three private access roads leading to the nearest public road then in existence. The defendant is the fee owner of both lot 6 and "Lot Avenue", a private road depicted on the subdivision map as running along the northerly boundary of lots 5 and 6. Lot Avenue is a "paper" road which has never been opened or dedicated as a street. The plaintiffs own lot 5. According to the subdivision map, the northerly boundary of lot 5 abuts Lot Avenue, while the northwest corner thereof abuts another private road designated as Lily Pond Drive.

Lot 5 was originally conveyed by lot number on February 4, 1916, with reference to the filed subdivision map and described as bounded by "a private road 25 feet in width, shown as Lot Avenue on the map". All subsequent deeds to lot 5, including the plaintiffs' deed, also refer to the filed subdivision map, the lot number, and the original metes and bounds description. Similarly, lot 6 was conveyed by the grantor with reference to the filed subdivision map, the lot number, and as being bounded by Lot Avenue.

Lot Avenue was originally conveyed to the first owner of lot 5 by a separate deed expressly providing that the conveyance was subject to "the right of way" of the owner of lot 6. In 1929, Lot Avenue was purchased by the owner of lot 6. Henceforth, lot 6 and Lot Avenue were to be conveyed together. Two of the defendant's immediate predecessors in title took lot 6 and Lot Avenue subject to the "rights, if any" of the owners of lot 5 to use any portion of Lot Avenue "for a roadway". The defendant's deed was the first to omit reference to such use.

On April 12, 1916, Lily Pond Drive was deeded to the Town of East Hampton and became a public street known as Lily Pond Lane. Although Lily Pond Lane borders upon the northwest corner of the plaintiffs' property, they seek more direct access to that same road from the northerly side of their property where a small accessory cottage is located. Thus, they have extended a driveway from the cottage over 12 feet of Lot Avenue for the purpose of gaining access to Lily Pond Lane. In turn, the defendant obstructed the plaintiffs' access to Lot Avenue by constructing a fence giving rise to the instant action.

It is well established that when property is described in a conveyance with reference to a subdivision map showing streets abutting on the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant (see, Rasch, Real Property Law and Practice § 744; see also, 49 N.Y.Jur.2d, Easements, § 62, citing Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S.2d 13, 133 N.E.2d 505; Erit Realty Corp. v. Sea Gate Assn., 249 N.Y. 52, 162 N.E. 581).

At bar, the Supreme Court properly found that the original grantor intended to grant an easement over Lot Avenue for the benefit of lot 5 by the conveyance of that lot with reference to the filed subdivision map of the Suffolk, Nassau and Queens Realty Company ( see, Rose v. Indian Park Assn., 3 A.D.2d 274, 160 N.Y.S.2d 353). Although the intention of the grantor is to be determined in light of all the circumstances, the most important indicators of the grantor's intent are the appearance of the subdivision map and the language of the original deeds ( see, e.g., Matter of City of New York 258 N.Y. 136, 147, 179 N.E. 321; Erit Realty Corp. v. Sea Gate Assn., 259 N.Y. 466, 182 N.E. 85; Rose v. Indian Park Assn., supra). Here it may reasonably be inferred from the appearance of the subdivision map and the manner in which the conveyances were effected after its filing that the grantor intended to create an easement over Lot Avenue in favor of lot 5. The fact that at the time of the subdivision the grantor created three private roads providing prospective lot owners with access to and from their property and to the nearest public road is a clear indication that all lots in the development were to be benefitted by easements over the abutting private roads. Moreover, the deeds effecting the original conveyances of lots 5 and 6 referred to the lots by number, described them as bounded by Lot Avenue, and specifically referred to the filed subdivision map. Also indicative of the grantor's intent to create an easement is the fact that Lot Avenue was sold as a separate parcel to the owner of lot 5 subject to "the right of way" of the owner of lot 6. Similarly, when Lot Avenue was subsequently sold to the owner of lot 6, the deed recognized the right of owners of lot 5 to use Lot Avenue as a roadway. In view of the foregoing, it is manifest that the grantor intended to create an easement by grant over Lot Avenue in favor of the abutting lots.

The grantees of lots abutting a street on a filed map are entitled to have the land so demarcated remain as a street forever ( see, Lord v. Atkins, 138 N.Y. 184, 33 N.E. 1035) absent its abandonment, conveyance, condemnation, or adverse possession ( Gerbig v. Zumpano, 7 N.Y.2d 327, 197 N.Y.S.2d 161, 165 N.E.2d...

To continue reading

Request your trial
25 cases
  • Koepp v. Holland
    • United States
    • U.S. District Court — Northern District of New York
    • February 4, 2010
    ...118, 125, 119 N.E. 243 (1918). An implied easement by necessity is extinguished when the necessity ceases. Fischer v. Liebman, 137 A.D.2d 485, 488, 524 N.Y.S.2d 720 (2d Dep't 1988) (citing Palmer v. Palmer, 150 N.Y. 139, 44 N.E. 966 (1896)) (holding that a right of way of necessity is not a......
  • Clover/Allen's Creek Neighborhood Ass'n v. M & F, LLC
    • United States
    • New York Supreme Court
    • March 8, 2023
    ... ... frauds). See also Huggins v. Castle Estates, Inc. , ... 36 N.Y.2d 427, 431 (1975); Fischer v. Liebman , 137 ... A.D.2d 485, 487 (2d Dept 1988) (subdivision map reference may ... qualify as a grant). Cf. H.S. Farrell, Inc. v. Formica ... ...
  • Clover/Allen's Creek Neighborhood Ass'n v. M & F, LLC
    • United States
    • New York Supreme Court
    • September 28, 2022
    ...property owners conveying public use easements to the Town - which the Town signed and accepted per its plans. See Fischer v. Liebman, 137 A.D.2d 485, 487 (2d Dept 1988) (an important indicator of the grantor's intent is the deed's language). Those deeds incorporated the 1997 Access Easemen......
  • B.J. 96 Corp. v. Mester
    • United States
    • New York Supreme Court — Appellate Division
    • December 7, 1995
    ...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 considere......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT