Willow Tex, Inc. v. Dimacopoulos

Decision Date18 November 1986
Citation68 N.Y.2d 963,510 N.Y.S.2d 543,503 N.E.2d 99
Parties, 503 N.E.2d 99 WILLOW TEX, INC., et al., Respondents, v. George DIMACOPOULOS et al., Appellants.
CourtNew York Court of Appeals Court of Appeals

William Paul Jacobs, for appellants.

Louis J. Rotondi, New York City, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 109 A.D.2d 740, 486 N.Y.S.2d 57, should be reversed, with costs, judgment granted declaring that plaintiffs have no easement over defendant's property, and the complaint otherwise dismissed.

Plaintiff Willow Tex, Inc. and defendant George Dimacopoulos are adjoining landowners, the southern boundary of plaintiff's property (parcel No. 1) running along the northern boundary of defendant's (parcel No. 2). Located on parcel No. 1 is a factory building extending to the common boundary, with two sets of fire doors at the boundary line. Use of those doors to reach the public road requires passage through an alley and driveway on parcel No. 2. While defendant purchased his parcel in 1976 and plaintiff purchased its parcel in 1980, the present controversy did not erupt until some time later, when plaintiff's tenant first tried to use the fire doors to gain access to the outside of the building and the public road. Defendant responded by placing a metal bar across one set of doors and thereafter by erecting a wooden fence four inches from them to preclude their use. After plaintiff's tenant received a summons from the fire department for operating the factory without usable fire doors, plaintiff and its tenant commenced this action seeking damages for trespass and declaration of an easement across parcel No. 2, pleading that there was an easement by implied grant and by prescription; they were subsequently permitted to add a cause of action for an easement by way of necessity.

After a nonjury trial, the court sua sponte amended the pleadings to conform to the proof, and decreed that parcel No. 2 was subject to an easement created by express grant. The decision rested on the fact that in 1966, when parcel No. 2 was owned by I. Abner Davis and parcel No. 1 was leased to his company (Sida Realty Corp.), Davis joined in Sida's application for a certificate of occupancy for the parcel No. 1 factory building, in which the parties proposed "to legalize cellar and 1st floor exits as shown on amended plans filed herewith"--which included the fire doors. The trial court further ordered defendant to keep the gate at the end of his driveway unlocked from 7:00 A.M. to 9:00 P.M. each day to permit plaintiffs unrestricted egress to the street. Upon cross appeals, the Appellate Division unanimously modified the judgment by ordering defendant to keep the driveway gate unlocked at all times.

The only issue raised by defendant on his appeal as of right from the Appellate Division modification is whether the court erred in concluding that there was an easement by express grant. Defendant prevailed on the additional issues decided below, and thus is not aggrieved by those rulings.

To create an easement by express grant there...

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28 cases
  • Koepp v. Holland
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • February 4, 2010
    ...State Elec. & Gas Corp. v. Aasen, 157 A.D.2d 965, 967-968, 550 N.Y.S.2d 223 (3d Dep't 1990) (citing Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965, 510 N.Y.S.2d 543, 503 N.E.2d 99 (1986)). The fact that an easement does not employ the term "permanent" or include an express reference to bind......
  • 114 Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 2016–12378
    • United States
    • New York Supreme Court Appellate Division
    • December 11, 2019
    ...and direct language reflecting a clear right of access that was granted over the plaintiffs' property (see Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965, 510 N.Y.S.2d 543, 503 N.E.2d 99, citing Clarke v. Devoe, 124 N.Y. 120, 126, 26 N.E. 275 ). Where, as here, a written instrument granting......
  • Rodriguez v. Winski
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 26, 2013
    ...intent” necessary to create a legally binding obligation for JPMC to open 1CMP to the public. Willow Tex, Inc. v. Dimacopoulos, 68 N.Y.2d 963, 965, 510 N.Y.S.2d 543, 503 N.E.2d 99 (N.Y.1986). The dictionary definition on which plaintiffs themselves rely and from which they selectively quote......
  • Asanda Park Ave., Inc. v. 120 E. 56TH St., L.L.C., Index No. 653623/2016
    • United States
    • United States State Supreme Court (New York)
    • December 23, 2016
    ...area. An easement is a permanent interest in real property created by a grant or conveyance, as by a deed. Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965 (1986); Kampfer v. DaCorsi, 126 A.D.3d 1067, 1068 (3d Dep't 2015); Millbrook Hunt v. Smith, 249 A.D.2d 281, 282-83 (2d Dep't 1998); Cleme......
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