Knafelc v. Edwards
| Decision Date | 11 January 2013 |
| Docket Number | No. 37–12–0394.,37–12–0394. |
| Citation | 966 N.Y.S.2d 347,38 Misc.3d 1212,2013 N.Y. Slip Op. 50079 |
| Parties | Teddy M. KNAFELC, Plaintiff, v. Donald G. EDWARDS, Richard Briggs, and “John Doe No. 1” through “John Doe No. 2” inclusive, said names being fictitious and intended to include any and all parties having an interest in the premise and not otherwise identified above, Defendants. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HEREAndrew T. Wolfe, Esq., Principal Law Clerk to, James W. McCarthy, JSC, Oswego, NY.
The above entitled matter came on before this court pursuant to an Order to Show Cause signed on August 10, 2012 and thereafter an Amended Order to Show Cause was signed on August 24, 2012 regarding property in the Town of West Monroe, County of Oswego, State of New York, which the plaintiff had bought at a tax foreclosure sale. The deed was received and dated October 20, 2010 from the Oswego County Treasurer. The Order to Show Cause and the Amended Order to Show Cause filed by the plaintiff requested this court to enter a temporary restraining order and eventually a preliminary injunction recognizing certain easements to benefit said property bought by the plaintiff as a dominant estate against the servient estate adjacent thereto owned by the defendant Donald Edwards. The defendant Richard Briggs was a tenant of Donald Edwards who lived in the alleged servient estate at all times in issue. The defendant Donald Edwards, filed a cross-motion dated August 22, 2012, prior to serving an answer, which requested the court to dismiss the summons and complaint, infra, pursuant to § 3211[a][7] and § 3212 of the CPLR. Defendant Edwards maintained that the easement that may have existed against the alleged servient estate owned by Edwards had been extinguished by the doctrine of “merger” and asked the court to declare same.
The parties appeared before the court on the motion return date and at that time, the court set a hearing pursuant to § 3211[c] of the CPLR upon the defendant's cross-motion and pursuant to § 6301 of the CPLR on plaintiff's request for a preliminary injunction. The hearing date was adjourned and took place on December 4, 2012 wherein witnesses were heard and documentary evidence received. At the end of the hearing, the court reserved decision upon the matter.
The defendant Donald Edwards by two separate deeds from one Sun N. Vincent, dated June 6, 2007, acquired the property now owned by the plaintiff and the property adjacent thereto which the plaintiff maintains is servient to easements of parking and use of a septic system on the defendant's 2.03 acre servient parcel. The plaintiff's property had a building thereupon that used to be known as the “NuMart Store” when plaintiff's predecessor in title, Sun N. Vincent, owned that parcel. Negotiations took place between the defendant Donald Edwards and Sun N. Vincent which resulted in the transfer of property owned by Sun N. Vincent by two separate deeds to Defendant Edwards. The 2.03 acre parcel contains the property wherein plaintiff maintains there exists an easement for parking to benefit his dominant estate and also maintains there is an above ground sewage system on defendant's property upon which he has an easement to use same. At the time of the deed transfers June 6, 2007 by Vincent to Edwards, the defendant was not represented by an attorney. The grantor, Sun N. Vincent, was represented by David Grasso, Esq. who drew the two deeds between herself and defendant Edwards. The issue in question in the case arose when the property transferred to defendant Edwards by Sun N. Vincent on June 6, 2007 containing the .47 acres upon which the “NuMart Store” was located had easements contained therein to benefit that .47 acres for parking and use of a sewage system on the other parcel Sun N. Vincent transferred by separate deed to defendant Edwards consisting of 2.03 acres. More particularly, the easement contained in the deed of Sun N. Vincent to defendant Edwards of the “NuMart property” now owned by plaintiff recited:
... Also conveying a Permanent Easement for the use of a sewage system and connecting lines located in the northeasterly corner of other lands conveyed to Vincent in Instrument R–2003–008225 for the use of said NuMart Store parcel. Also conveying a Permanent easement for parking over a strip of land 65 feet in width and 200 feet in depth measured from the centerline of New York State Route No. 49 and lying easterly of and adjacent to the easterly line of the above described parcel and its northerly extension ...
[Deed, Sun N. Vincent to Donald Edwards dated June 6, 2007, exhibit 2]. Both deeds were recorded on June 7, 2007 by defendant Edwards.
For various reasons, more particularly the state of disrepair of the “NuMart Store”, defendant Edwards decided not to pay the taxes thereupon and allowed it to go to tax foreclosure sale. The County of Oswego took title to the premises because of failure to pay taxes and eventually the plaintiff herein purchased same on October 20, 2010 which resulted in him obtaining a deed from the County of Oswego of the “NuMart” property consisting of .47 acres. The plaintiff had researched the title of said premises and ascertained that he would have certain easements pursuant to the previous deed of Sun N. Vincent dated June 6, 2007 to the defendant Edwards, said easements utilized for parking and also the use of the above ground sewage system located on the separate property retained by the defendant Edwards consisting of 2.03 acres. The plaintiff maintains that the defendant Edwards, or the defendant's agents, have not allowed him to use the parking easement or sewage easement and in fact put up no trespassing signs on the property line between the parcel owned by the plaintiff [hereinafter called “dominant estate”] and the parcel owned by the defendant Edwards [hereinafter called “servient estate”].
Defendant Edwards maintains, as a matter of law, that since he took title of the dominant and servient estates the easements contained in the deed conveyed of the “NuMart” property by Sun N. Vincent to him on June 6, 2007 have been extinguished. Furthermore, defendant Edwards maintains that the defendant having taken title by a tax foreclosure sale with no specific reference to the easement in said tax deed that plaintiff therefore has no easement even if one had survived the doctrine of merger. The plaintiff, in a supplemental memorandum of law, has requested the court consider that the he has an “easement by necessity” and that the court find an “implied easement” for the use of the dominant estate over the servient estate to benefit the plaintiff. While those two specific claims were not contained in the complaint filed by the plaintiff, in the hearing held December 4, 2012, testimony was taken on those issues without objection from the defendant Edwards. Furthermore, the defendant had addressed those issues in a memorandum of law filed by his counsel. Also, pursuant to Vick v. Box Tree Assets, LLC, 21 Misc.3d 1120[A] [Sup.Ct., Yates Co., 2008], the court may take up those issues: ... While the plaintiff's complaint does not use the words implied easement', it does set forth facts and assertions that address the various elements of that cause of action, including unity of ownership, that the use was established prior to the split [of the parcels], that the easement effects the value of the estate benefitted, and that it is reasonably necessary. The Court concludes that the pleadings gave defendant sufficient notice of plaintiff's claims, within the meaning of CPLR § 3026 ...
Id. In the further event that in this decision plaintiff's and the defendant Edwards' respective motions are denied and issue has not yet been joined when defendant files his answer, plaintiff may file an amended complaint as of right containing those causes of action therein.
As referenced herein, the court held a hearing December 4, 2012 on plaintiff's motion for a preliminary injunction pursuant to CPLR § 6301 allowing use of the easements herein by the plaintiff and pursuant to CPLR § 3211[c] regarding defendant Edwards' cross-motion that the claims failed to state a cause of action under CPLR § 3211[a][7] and that summary judgment should be granted pursuant to CPLR § 3212. The plaintiff and the defendant Edwards both testified in this matter to the facts hereinbefore asserted. The plaintiff specifically testified that when he researched the title of the property to be purchased at the foreclosure sale, he bought same on the premise that the easements over the servient estate were in defendant Edwards' original deed he received to the “NuMart” property and they survived and ran with the “NuMart” property after plaintiff bought same at the foreclosure sale. The defendant inferentially testified that he received both deeds of the dominant and servient estate from Sun N. Vincent and as a matter of law, pursuant to the merger doctrine, the easements contained in the “NuMart” property against the servient estate retained by him were extinguished upon receipt of the deeds. Furthermore, another witness was called by the plaintiff, one Allan LeClair, who testified that he drove by the property for more than eight years and on a couple of occasions he could remember cars being parked on the servient property wherein that easement was claimed.
The defense called various witnesses, one Bruce Ackley, Laurie Guy, and Dwayne Head, who testified they were aware of the previous “NuMart” Store being on the plaintiff's property and that they never saw anyone parking in the parking easement of the servient estate. Defendant Richard Briggs testified that he lived in the building on the servient property since July 2012 and that the sewage system currently serving the servient estate is an approximately 150 foot leach field with two tanks that were marked on the survey received in evidence, exhibit 10 and not...
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