Monte v. Di Marco

Decision Date14 April 1993
Citation596 N.Y.S.2d 253,192 A.D.2d 1111
PartiesPhilip J. MONTE, Appellant, v. Domenico DI MARCO and Concetta Di Marco, Respondents.
CourtNew York Supreme Court — Appellate Division

Roy Carlisi by Michael Iacono, Buffalo, for appellant.

John J. Carney by Keith Martin, Buffalo, for respondents.

Before DENMAN, P.J., and GREEN, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for defendants' alleged unauthorized use of his real property and, additionally, seeking to enjoin defendants from entering onto such property and using an underground sewer line traversing the property. Defendants counterclaimed, seeking a judgment granting them a permanent implied easement over and under the property. Plaintiff appeals from a judgment that granted defendants an implied easement but that ordered defendants to pay plaintiff $15,000 as the fair market value of the easement and $1,676 as its fair rental value for the period 1982 through 1991.

We conclude that defendants have an implied easement by grant based upon existing use, as distinct from an easement implied by necessity (see generally, Zentner v. Fiorentino, 52 A.D.2d 1036, 384 N.Y.S.2d 297). The general rule regarding easements implied by existing use is as follows: where, during the period in which title was unified, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another, and where such servitude, at the time of severance of title, remains in use and is reasonably necessary for the fair enjoyment of the estate conveyed, a grant of the right to continue such use is implied in the conveyance of the dominant estate (see, Heyman v. Biggs, 223 N.Y. 118, 125, 119 N.E. 243; Paine v. Chandler, 134 N.Y. 385, 387, 32 N.E. 18; Buck v. Allied Chem. Corp., 77 A.D.2d 782, 782-783, 431 N.Y.S.2d 222). Thus, a grantee claiming an easement implied by existing use must establish: (1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed (McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541, lv. denied 32 N.Y.2d 610, 344 N.Y.S.2d 1025, 297 N.E.2d 524; Willow Tex v. Dimacopoulos, 120 Misc.2d 8, 11, 465 N.Y.S.2d 641, mod. on other grounds 109 A.D.2d 740, 486 N.Y.S.2d 57, revd. on other grounds 68 N.Y.2d 963, 510 N.Y.S.2d 543, 503 N.E.2d 99).

To establish an easement by implication from existing use, the proponent-grantee must show only a "reasonable", not an absolute, necessity (Paine v. Chandler, supra, 134 N.Y. at 389, 32 N.E. 18; Buck v. Allied Chem. Corp., supra, 77 A.D.2d at 783, 431 N.Y.S.2d 222).

Defendants established the necessary elements of such easement. Prior to defendants' purchase of the motel and stores in the tax foreclosure sale, plaintiff held title to those properties in common with its title to the retained portion of the business alley. At the time of severance of title, plaintiff was making open and obvious use of the business alley as a means of access to the property. Less immediately apparent, but nonetheless ascertainable upon a reasonable inspection and inquiry, was plaintiff's...

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    ... ...          More ... importantly, Mario Daniele is not relieved of his easement ... obligation. See e.g. Monte v. Di Marco , 192 A.D.2d ... 1111 (4th Dept 1993) (concluding that the defendants had an ... implied easement). Although not as nefarious as laid ... ...
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    ...use (see West End Props. Assn. of Camp Mineola, Inc. v. Anderson, 32 A.D.3d 928, 929, 823 N.Y.S.2d 412 ; Monte v. DiMarco, 192 A.D.2d 1111, 1112, 596 N.Y.S.2d 253 ; Minoque v. Monette, 158 A.D.2d 843, 551 N.Y.S.2d 427 ), or an easement by prescription (see Martin Weiszberger in Trust v. Hus......
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    ...and that its continuation is necessary to the reasonable beneficially enjoyment of the estate conveyed.Monte v. DiMarco, 192 A.D.2d 1111, 596 N.Y.S.2d 253 [4th Dept., 1993]; Lv.toApp. Denied 82 N.Y.2d 653, 601 N.Y.S.2d 583, 619 N.E.2d 661. The testimony of the parties at the hearing hereof ......
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