Niceforo v. Haeussler

• Decision Date: 26 October 2000
• Citation: Niceforo v. Haeussler, 276 A.D.2d 949, 714 N.Y.S.2d 788 (N.Y. App. Div. 2000)
• Parties: NICOLA NICEFORO et al., Doing Business as PAPA'S FAMILY DINER, Respondents,<BR>v.<BR>ELIZABETH HAEUSSLER, Doing Business as ELIZABETH'S UNISEX SALON, Appellant.
• Court: New York Supreme Court — Appellate Division

276 A.D.2d 949

714 N.Y.S.2d 788

NICOLA NICEFORO et al., Doing Business as PAPA'S FAMILY DINER, Respondents,

v.ELIZABETH HAEUSSLER, Doing Business as ELIZABETH'S UNISEX SALON, Appellant.

Decided October 26, 2000.

Cardona, P.J., Carpinello and Graffeo, JJ., concur.

Crew III, J.

Plaintiffs and defendant are the owners of adjoining parcels of land located at 209 Delaware Street and 207 Delaware Street, respectively, in the Village of Walton, Delaware County. Both parcels originally were owned by Albert Smith and Lucy Smith. Examination of the parties' respective chains of title reveals that the Smiths conveyed the parcel located at 209 Delaware Street to Susie Sutliff in 1920, together with "the right to use, for the purpose of a drive way, in common with the party owning [defendant's property], the strip of land * * * immediately easterly of the property hereinbefore conveyed, which strip is ten feet wide, it being understood that this right to use as a drive extends only far enough toward the rear of the lot to accommodate [Sutliff] in getting past her house." One year later, the Smiths conveyed the adjoining parcel at 207 Delaware Street to one of defendant's predecessors-in-interest, Katherine Owens, "excepting and reserving from said parcel the rights and privileges hereto conveyed to * * * Sutliff."

In 1934, Sutliff conveyed the parcel at 209 Delaware Street to Floyd Benson, including "all her right, title and interest in the use of a drive way lying easterly of the property conveyed by this deed, the use of which drive way was deeded to [Sutliff by the Smiths in 1920]." At some point subsequent thereto, the residence located on the parcel was demolished and a gas station was erected. Ultimately, plaintiffs acquired the parcel in June 1992 by a deed that referenced and included the "10-foot wide driveway easement." Plaintiffs thereafter opened a diner on the property and utilized the area behind the structure as a parking lot, which is accessible via the driveway. In the interim, defendant acquired the adjoining parcel at 207 Delaware Street, where she resides and operates a hair salon.

A dispute eventually arose as to plaintiffs' use of the driveway, prompting plaintiffs to commence this action seeking, inter alia, a declaration that they had a right of ingress and egress over the driveway. Following joinder of issue and the granting of a preliminary injunction, which enjoined either party from parking on or obstructing the driveway, plaintiffs moved for summary judgment. Supreme Court granted plaintiffs partial summary judgment on their first cause of action, declaring that plaintiffs indeed have an easement, in common with defendant, of which they may make reasonable use for ingress to and egress from their property. This appeal by defendant ensued.

Defendant's primary argument on appeal is that the right-of-way in question was an easement in gross and, hence, was extinguished upon, inter alia, Sutliff's disposition of the property. We cannot agree. "[A]n easement in gross is a `mere personal, nonassignable, noninheritable privilege or license'" (Henry v Malen, 263 AD2d 698, 702, n 3, quoting Loch Sheldrake Assocs. v Evans, 306 NY 297, 304), while an easement appurtenant provides for a transferrable interest in land (see, id., at 702, n 3). Specifically, an easement appurtenant is created when such easement is "(1) conveyed in writing, (2) subscribed...