Strnad v. Brudnicki

• Decision Date: 31 January 1994
• Citation: Strnad v. Brudnicki, 200 A.D.2d 735, 606 N.Y.S.2d 913 (N.Y. App. Div. 1994)
• Parties: Hermine Helen STRNAD, et al., Respondents, v. Gary BRUDNICKI, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 913

606 N.Y.S.2d 913

200 A.D.2d 735

Hermine Helen STRNAD, et al., Respondents, v. Gary BRUDNICKI, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Jan. 31, 1994.

Robert L. Dougherty, Garden City, for appellants.

Dollinger, Gonski, Grossman, Permut & Hirschhorn, Carle Place (Michael Permut and Michael J. Spithogiannis, of counsel), for respondents.

Before MILLER, J.P., and O'BRIEN, RITTER and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to RPAPL article 15 for a judgment declaring the validity of an easement, and a permanent injunction interfering with its use, the defendants appeal from a judgment of the Supreme Court, Suffolk County (Cannavo, J.), entered March 10, 1993, which, inter alia, made the declaration and awarded the plaintiffs a permanent injunction.

ORDERED that the judgment is affirmed, with costs.

In 1946 an easement of way was created by express grant. Through subsequent conveyances the plaintiffs became owners of the subdivided lots on the dominant estate and the defendants became owners of a lot on the servient estate. All of the plaintiffs' deeds either contained a specific reference to the easement or contained appurtenance clauses. The defendants' deed contained specific reference to the existence of the easement and indicated that the property was purchased subject to the easement. After several years of use and notice of the easement, the defendants constructed a fence to block access to the easement. The plaintiffs moved for and were granted a preliminary injunction to prevent the defendants from obstructing the use of the easement. The plaintiffs also moved for and were granted summary judgment for a permanent injunction to prevent the defendants from obstructing the use of the easement.

An easement appurtenant occurs when the easement is (1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate (see, 2 Warren's Weed New York Real Property, Easements, § 3.05 [4th ed]; 49 NY Jur 2d, Easements and Licenses in Real Property, § 8). Thereafter, when the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses even though there is no specific mention of the easement in the deed (Spencer v. Kilmer, 151 N.Y. 390, 398-399, 45 N.E. 865; Brooks v. Wheeler, 214 App.Div. 147, 149, 212 N.Y.S. 13, modified on other grounds 243 N.Y. 28, 152 N.E. 454; Chain Locations of Am. v. County of Westchester, 20 Misc.2d 411, 413-414, 190 N.Y.S.2d 12, affd. 9 A.D.2d 936, 196 N.Y.S.2d 573; 2 Warren's Weed New York Real Property, Easements, § 8.04 [4th ed]; 49 NY Jur 2d, Easements and Licenses in Real Property § 159). Once the appurtenant easement is created, it can only be extinguished by abandonment, conveyance, condemnation, or adverse possession and "remains as inviolate as the fee" (Gerbig v. Zumpano, 7...