Zunno v. Kiernan
| Decision Date | 14 February 1991 |
| Citation | 170 A.D.2d 795,565 N.Y.S.2d 900 |
| Parties | Rosalie ZUNNO, Appellant, v. James KIERNAN, as Executor of the Estate of Edward B. Kiernan, Jr., Deceased, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Solomon Abrahams, P.C. (Solomon Abrahams, of counsel), White Plains, for appellant.
Eugene F. Frink and Associates (Eugene F. Frink, of counsel), Pawling, for respondent.
Before CASEY, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.
Appeals (transferred to this court by order of the Appellate Division, Second Department) (1) from an order of the Supreme Court (Hillery, J.), entered June 16, 1989 in Dutchess County, which, inter alia, granted defendant's motion for summary judgment and declared that defendant had the right-of-way over a driveway on plaintiff's property, and (2) from the judgment entered thereon.
Plaintiff commenced this action for injunctive relief, damages and a judgment declaring that defendant 1 did not have an easement over plaintiff's property. Defendant counterclaimed for, among other things, a judgment declaring that the easement existed and sought both compensatory and punitive damages. This controversy stems from two deeds executed and recorded in January 1955 by Albert Lake, Helen Lake, Russell Gobel and Christine Gobel, the predecessors in interest to the parties in this action. In these deeds, the Lakes and the Gobels conveyed to each other easements allowing each other the right to use a private road or driveway running across the two properties. Thereafter, at various times, the Lakes and Gobels conveyed their properties to other persons. Ultimately, plaintiff acquired the property originally belonging to the Lakes while defendant acquired the property originally belonging to the Gobels. Of significance to this lawsuit is the fact that, while the deeds in the chain of title from the Gobels to defendant all make reference to the January 1955 easement, the deeds and mortgage running from the Lakes to plaintiff do not. Apparently, because of plaintiff's alleged belief that no easement existed over her property, a dispute developed between plaintiff and her neighbors over the use of the driveway. A title search conducted at plaintiff's behest by an attorney apparently did not uncover the recorded easements. 2 The parties dispute whether the easements are shown on surveys of the properties.
Following joinder of issue, defendant moved for summary judgment declaring that the easement was valid. Defendant also requested that Supreme Court allow him to amend his answer a second time. The court granted this motion, judgment was entered and this appeal followed.
Supreme Court correctly concluded that defendant has an easement over plaintiff's property. It is beyond dispute that "a grantee of land takes title subject to duly recorded easements that have been granted by his predecessors in title" (49 NYJur2d, Easements and Licenses in Real Property, § 163, at 279-280). Even assuming that plaintiff had no actual notice of the easement, the public record served as constructive notice to plaintiff, the subsequent purchaser, regardless of whether the record was examined at all or examined negligently (see, 49 NYJur2d, Easements and Licenses in Real Property, § 163, at 280; see also, Stolts v. Tuska, 76 App.Div. 137, 141, 78 N.Y.S. 687). It makes no difference here that the easement was not referred to in plaintiff's deed. Once created, an easement cannot be unilaterally terminated by the grantee of the servient estate (see, Wood v. Simon, 43 Misc.2d 500, 503, 251 N.Y.S.2d 621; 49 NYJur2d, Easements and Licenses in Real Property, § 171, at 293). Plaintiff incorrectly states that there are questions of fact concerning the validity of the easement over her property that require resolution at trial.
Finally, plaintiff contends that Supreme Court erred in allowing d...
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