Muxworthy v. Mendick

Citation411 N.Y.S.2d 737,66 A.D.2d 1017
PartiesRoss A. MUXWORTHY, Respondent, v. William MENDICK, John Mendick, Anthony Del Vecchio and Steven Boyecko, Appellants.
Decision Date15 December 1978
CourtNew York Supreme Court Appellate Division

Robinson, Williams & Angeloff, Rochester, by Mitchell T. Williams, Rochester, for appellants.

Lamb, Webster, Walz & Donovan, Rochester, by Luther I. Webster, Rochester, for respondent.

Before MARSH, P. J., and MOULE, SIMONS and HANCOCK, JJ.

MEMORANDUM:

Defendants assert that plaintiff did not have an easement of parking rights in defendants' property because they lacked notice of such easement and because the provisions of a duly recorded lease could not be incorporated into a deed. Additionally, defendants assert that if plaintiff does have an easement of parking rights, plaintiff should pay a proportionate share of the cost of maintaining such parking areas. By deeds recorded in the Monroe County Clerk's Office in 1917 and 1955, John F. Muxworthy, Sr. (Muxworthy Sr.) became the owner of a certain property in Irondequoit, New York. In 1955 Muxworthy Sr. leased to Loblaw, Inc. all of said premises except for a rectangular piece in one corner, upon which stood the Muxworthy Hardware Store. The lease provided that the owners of the Muxworthy Hardware Store, customers of the store and other tenants of the hardware store building could use the parking lot located on the portion of the property leased to Loblaw, Inc. Loblaw, Inc. covenanted to light and snowplow the parking lot. This lease was duly recorded in the Monroe County Clerk's Office. In 1958 Muxworthy Sr. deeded the corner portion of the property, upon which stood the hardware store, to his son, the plaintiff herein. The deed transferred the property "(t)ogether with all rights and privileges in the parking areas * * * which parking areas are used jointly with Loblaws store pursuant to terms of a lease heretofore entered into between (Muxworthy Sr.) and Loblaws." The deed was duly recorded in the Monroe County Clerk's Office. Loblaw did not renew the lease and upon Muxworthy Sr's. death in 1973, defendants first leased, then purchased from the Muxworthy Sr. estate the property formerly leased to Loblaw. The purchase offer provided that defendants would take the property subject to the "rights and privileges of (plaintiff) in the parking areas on the premises as such rights and privileges are set out in a deed recorded in Monroe County Clerk's Office." The executor's deed to defendants provided that defendants took the property "(s)ubject to the covenants, easements and restrictions of record."

In 1976, after a dispute concerning plaintiff's parking rights, plaintiff commenced an action in Supreme Court, Monroe County, for a...

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2 cases
  • Sutera v. Go Jokir, Inc., 200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 17, 1996
    ...between servient and dominant owners to decide which party is required to make repairs. See, e.g., Muxworthy v. Mendick, 66 A.D.2d 1017, 1019, 411 N.Y.S.2d 737 (4th Dep't 1978) (dispute over responsibility for clearing snow); Schenectady Ry. v. Greene, 227 A.D. 11, 15, 236 N.Y.S. 477 (3d De......
  • Witter v. Taggart
    • United States
    • United States State Supreme Court (New York)
    • July 3, 1989
    ...Inc., supra, albeit without mentioning that case by name. (Marra v. Simidian, 79 A.D.2d 1046, 435 N.Y.S.2d 182; Muxworthy v. Mendick, 66 A.D.2d 1017, 411 N.Y.S.2d 737.) The Court, however, concludes that the defendants, Edward J. Taggart and Rosemary Taggart, in this case are charged with n......

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