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Monroe Title News for 2001
Editor: FRANK POTTER Table of Contents
SERIES: Sixteen VOLUME: Twelve DATED: December, 2001~ PRIOR RECORDED DEED UPHELD DESPITE ALLEGED CONFUSION OF GRANTOR ~ A recently decided Appellate case, Carolyn Williams v. Ronald Ross (Appellate Division, Third Department, decided November 22, 2000) upheld the validity of a recorded deed despite statements and actions by the grantor which indicated her confusion concerning delivery of the deed of the real property at issue to two different parties over a five year period. The Appellate Court held in its opinion that the execution and recordation of a deed raises a presumption that the deed was validly delivered and that by recording his deed prior to the plaintiff, the defendant had obtained a superior claim to title under Real Property Law Section 291(Recording of Conveyances). The Court in Williams issued the following memorandum and order:
Back to TopSERIES: Sixteen VOLUME: Eleven DATED: November, 2001~ EASEMENT OVER PAPER STREET DENIED ~ Generally, an incident of ownership of a lot shown on a filed subdivision map is that the grantee has the right to use the adjacent streets shown on the subdivision map as an appurtenant easement of access to and from the grantee's lot whether or not that easement is specifically stated in the deed to the grantee. This street easement extends only to the next cross street on the map located on each side of the lot and also over all other streets on the filed map which are necessary to give access to a public highway. A recently decided Appellate Division case, Palma v. Mastroianni (Appellate Division Third Department, decided October 19, 2001) reviewed the case law applicable to "paper streets" and denied a lot owner access to a paper street abutting his property as shown on a filed subdivision map. The parties in the Palma case were owners of adjacent parcels of real property located in the Town of Glenville, Schenectady County. The plaintiff, Palma owns three contiguous lots designated as Lots 1, 2 and 3 on a map filed with the Schenectady County Clerk on September 30, 1926 by Katharine Galbraith. The southerly border of each of the plaintiff's lots abuts a paper street identified on the 1926 map as "Corry Street" and only Lot 1 abuts a public roadway. The plaintiff, Palma has owned these lots since 1970 and his deed specifically references the 1926 map. In 1993, the defendants, Mastroianni acquired title to Lot 4 and Corry Street. The southern border of Corry Street, which has never been deeded to or recognized by the Town of Glenville as a town road, abuts the north boundary line of Lot 4. After Mastroianni denied Palma access to his property over Corry Street in August 1997, Palma commenced this litigation seeking a declaration that he has an implied easement over Corry Street as a paper street or, alternatively, that he had acquired a prescriptive easement (by adverse use) over Corry Street. The lower court denied both of Palma's easement requests and dismissed Palma's complaint. On appeal, the Appellate Court upheld the lower court decision with the following reasoning: "We agree with the Supreme Court's resolution of the issues and affirm its judgment. Plaintiff claims that, by virtue of the existence and filing of the 1926 map depicting the division of a portion of Galbraith's property into 18 individual lots, an implied easement by grant was created in Corry Street. Whether an easement by implication has been created ultimately depends on the intentions of the grantor at the time of the original conveyance ... and the best indicators of those intentions are the appearance of the subdivision map in the language of the original deed ... As specifically noted by this Court, the creation of an easement by implication 'requires proof that the deed from the original subdividing grantor referred to the subdivision map or the abutting paper street' ... Here, while the 1926 map depicts plaintiff's parcels as abutting Corry Street, it is undisputed that the deed originating from Galbraith to the grantee realty corporation [Palma's predecessor in title] - which was filed approximately 8 weeks after the filing of the map - does not contain a reference to any subdivision of the property, to the 18 individual lots, to Corry Street or, most importantly, to the 1926 map itself ... rather, the deed conveys a 13.58 - acre tract of land described in terms of metes and bounds. Plaintiff claims that the lack of any reference in the original deed to the 1926 map is not dispositive but rather 'left open a factual question as to [Galbraith's] intention'. To be sure, Supreme Court was required to resolve that factual issue and the burden was on Plaintiff to establish 'all the facts necessary to support' an implied easement... There being no other evidence in the record of any intention by Galbraith to establish an implied easement in Corry Street at the time she deeded the property, plaintiff failed to sustain that burden ... We likewise find support for Supreme Court's finding that plaintiff failed to establish by clear and convincing evidence that he acquired a prescriptive easement over Corry Street, particularly given the testimony of plaintiff and his son that access to plaintiff's lots over the years was via a gravel driveway on defendant's property (not Corry Street) which was used with the express permission of defendant's predecessors. In addition, there is sparse evidence that any actual use of Corry Street itself was continuous and uninterrupted for the 10 years needed to establish such an easement ... ORDERED that the judgment is affirmed with costs." Back to TopSERIES: Sixteen VOLUME: Ten DATED: October, 2001~ NEW YORK LIEN LAW PROVISIONS AMENDED ~ Chapter 288 and Chapter 324 of the New York Session Laws of 2000 were signed into law by the Governor on August 23rd of this year and amend three sections of New York's Lien Law (Sections 10, 17 and 18). Chapter 288 amends Subdivision 1 of Section 10 of the New York Lien Law which establishes when notices of mechanics liens must be filed. Section 10 provides as follows: "1. Notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within eight (8) months after the completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished; provided, however, that where the improvement is related to real property improved or to be improved with a single family dwelling, the notice of lien may be filed at any time during the progress of the work and the furnishing of the materials, or, within four (4) months after completion of the contract, or the final performance of the work, or the final furnishing of the materials, dating from the last item of work performed or materials furnished..." The recently enacted amendment of Section 10 modifies the definition of the terms "single family dwelling" and "developer". The amended portion of Section 10 now provides: "... For purposes of this Section, the term 'single family dwelling' shall not include a dwelling unit which is part of a subdivision that has been filed with a municipality in which the subdivision is located when at the time the lien is filed, such property in the subdivision is owned by the developer for purposes other than his personal residence. For purposes of this Section, 'developer' shall mean and include any private individual, partnership, trust or corporation which improves two or more parcels of real property with single family dwellings pursuant to a common scheme or plan." [amended language underlined] These revisions to Section 10 the New York Lien Law became effective October 22, 2000. Pursuant to Chapter 324 of the Session Laws of 2000 Sections 17 and 18 of the Lien Law have also been amended. Section 17 of the New York Lien Law establishes the duration of a mechanics lien once it is filed. It provides as follows: "No lien specified in this article shall be a lien for a longer period than one (1) year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, containing the names of the parties to the action, the object of the action, a brief description of the real property affected thereby, and the time of filing the notice of lien; or unless an extension to such lien, except for a lien on real property improved or to be improved with a single family dwelling, is filed with the county clerk of the county in which the notice of lien is filed within one (1) year from the filing of the original notice of lien, ... No lien shall be continued by such extension for more than one (1) year from the filing thereof. In the event an action is not commenced to foreclose the lien within such extended period, such lien shall be extinguished unless an order be granted by a court of record or a judge or justice thereof, continuing such lien, ..." The amended portion of Lien Law Section 17 reads as follows: "A lien on real property improved or to be improved with a single family dwelling may only be extended by an order of a court of record, or a judge or justice thereof. No lien shall be continued by court order for more than one (1) year from the granting thereof, but a new order and entry may be made in each of two successive years..." [amended language underlined] This recent amendment of Lien Law Section 17 therefore limits a lienor's ability to extend a mechanics lien on real property improved by a single family dwelling or to extend an already once extended mechanics lien on property other than a single family dwelling for more than a one (1) year period at a time by court order with a maximum possible lien extension of two (2) successive one year periods. Chapter 324 also amends New York Lien Law Section 18 which addresses the duration of liens under contracts for public improvement. Liens for labor done or materials furnished for public improvements now have a duration of one (1) year. Before amendment, the lien period for public improvements was only six (6) months. Public improvement liens can be extended for one additional one (1) year period without court order, but, similar to the Section 17 amendment, additional extended one lien periods must now be granted by court order for one (1) year at a time with the maximum total extended lien period being two (2) successive one year periods. Back to TopSERIES: Sixteen VOLUME: Nine DATED: September, 2001~MONROE-GORMAN TITLE AGENCY, LLC~ On September 7th Tom Moonan and Mike Gorman announced the formation of a joint venture for the purpose of providing a full range of title insurance and abstract services in Wayne County. This new joint venture is known as Monroe-Gorman Title Agency, LLC. Mike together with his able staff, Heidi Brague, Judy Shumway , Patty Youngman and Margaret (Mike) Jones commenced business on Monday, September 11th in the former Monroe Title office located at 34 William Street in Lyons. Anyone requiring abstract or title insurance services in Wayne County, who wants that work done by the most experienced and capable available personnel, should contact Monroe-Gorman at 315-946-9181 or by fax at 315-946-9885. The formation of this joint venture and the return of Mike Gorman and his outstanding staff to Monroe's extended family is an exciting development and we wish Mike all the best in his new business venture. ~NEIGHBOR DENIED PRESCRIPTIVE RIGHT TO USE OF DRIVEWAY STRADDLING COMMON BOUNDARY LINE~ A recent Appellate Division decision, Northtown, Inc. v. Vivacqua (Appellate Division Fourth Department, decided May 10, 2000), upheld a lower court's denial of a property owner's request for prescriptive easement over the portion of a driveway (which straddled a common boundary) located on an adjacent neighbor's side of their joint property line. The Court in the Northtown case issued the following statement of law concerning prescriptive rights in a driveway located on a common boundary: "This action involves a dispute over the right of defendants to use a driveway straddling the common boundary line between their property, where their insurance business is located, and property owned by plaintiff known as Northtown Plaza. The properties are separated by a driveway 30 feet in width, 5 1/2 feet of which is located on defendants' property and 24 1/2 feet of which is located on plaintiff's property. That driveway is commonly used by the public to enter and exit both Northtown Plaza and defendants' business. Plaintiff commenced this action seeking to enjoin defendants from trespassing on that part of the driveway located on plaintiff's property. Supreme Court properly denied the motion of defendants seeking dismissal of the complaint and judgment on their counterclaim declaring that they have acquired a prescriptive easement over plaintiff's portion of the driveway and granted the cross motion of plaintiff for summary judgment. Defendants failed to meet their burden of establishing by clear and convincing evidence that their use of the driveway was adverse, open and notorious, continuous and uninterrupted for the prescriptive period of 10 years (see RPAPL 311...). Because defendants' use of the driveway was in common with the general public, defendants had to show 'some distinctive and decisive act on [their] or [their] predecessors' part indicating and exercise of exclusive right sufficient to notify the owner of the user and of the claim of right'... Defendants admitted that they made no attempt to seize plaintiff's portion of the driveway and presented no evidence that they asserted an exclusive right to use the driveway. Furthermore, because defendants' use of the driveway was initially permissive in nature, 'it was incumbent upon [defendants] to show the assertion of a hostile right which is made known to the property owner...'. Defendants failed to present proof of any act on their part that would provide notice to plaintiff of a hostile claim of right to use plaintiff's portion of the driveway. We reject the contention of defendants that the element of adverse use may be presumed by the parties' reciprocal use of the driveway. Although the adverse use requirement needed to establish a prescriptive easement may be inferred from reciprocal use of a driveway located along a common boundary line... defendants failed to establish that the driveway in question was used in a reciprocal adverse manner by the parties... While defendants had a need to use plaintiff's portion of the driveway, plaintiff had no similar need to use defendants' portion of the driveway. Thus, this is not a true reciprocity case but rather a case of 'mere permissive use over the land of another [that] will never ripen into an easement... Because plaintiff in its motion sought, inter alia, a declaratory judgment, the court should have declared the rights of the parties... We modify the judgment, therefore, by granting judgment in favor of plaintiff declaring that plaintiff has the exclusive right to own, use and possess the 24 1/2 feet of the Bailey Avenue driveway located on its property." ~ TITLE POLICY HELD NOT TO INSURE DAMAGES CAUSED BY OVER-APPRAISAL OF INSURED PROPERTY ~ A recently decided case, Mortgage Bankers Corp. v. Nations Title Insurance of New York, Inc. (Appellate Division, Second Department, decided August 15, 2000) has, in a brief decision, defined the limits of title coverage once again and denied an insured's claim of damages caused by its own over-appraisal of the property insured. The Court in Mortgage Bankers Corp. summarized the applicable title insurance law as follows: "The plaintiff asserts that the defendant, a title insurance company, failed to perform its obligations under a title insurance policy that the plaintiff obtained from it in connection with a mortgage loan given by the plaintiff to an individual who falsely represented his identity. The loan went into default, and the plaintiff successfully foreclosed and purchased the property at the foreclosure sale. In attempting to sell the property, the plaintiff discovered that it had been over-appraised and was worth significantly less than the amount of its loan. After the second cause of action was dismissed, the defendant moved for summary judgment dismissing the first cause of action asserted in the complaint, which was to recover damages for breach of contract. The Supreme Court denied the motion, and we reverse. It is well settled that '[a] title insurer's obligation to indemnify is defined by the policy itself and limited to the loss in value of the title as a result of title defects against which the policy insures' (Citibank v. Chicago Tit. Ins. Co. of New York, 214 A.D. 2d 212, 221). '[A] policy of title insurance is a contract by which the title insurer agrees to indemnify its insured for loss occasioned by a defect in title' (Smirlock Realty Corp. v. Title Guar. Co., 52 N.Y. 2d 179, 188; see, Insurance Law § 6401 Ins.). 'Such a policy entitles the insured to indemnity only to the extent that its security is impaired and to the extent of the resulting loss which it sustains' (Diversified Mtge. Investors v. U.S. Life Tit. Inc. Co., 544 F. 2d 571, 574, n 2; see, Halfmoon Professional Offs. v. American Tit. Ins. Co., 235 A.D. 2d 801). Contrary to the plaintiff's contention, inasmuch as a valid title was transferred, and it received a valid and enforceable first mortgage lien on the property, as evidenced by its ability to successfully foreclose, the defendant satisfied its obligations under the policy (see, Citibank v. Chicago Tit. Ins. Co., supra, at 222)." Back to TopSERIES: Sixteen VOLUME: Eight DATED: August, 2001~FENCE AFFIDAVIT HELD NOT SUFFICIENT TO DEFEAT ADVERSE POSSESSION~ A recently decided Appellate Division case, Ahl v. Jackson (Appellate Division 4th Department, decided May 10, 2000) has held that once an adverse possessor's possession of land is open and notorious, exclusive, continuous, hostile and under a claim of right for a period over ten (10) years, the adverse possessor is vested with title to the land possessed and "title may be transferred only by deed or other method recognized at law". The Appellate Division also held that a statement in a fence affidavit, after the 10 year adverse possession statutory period has run, that the adverse possessor did not claim the possessed land at issue does not constitute a legal transfer of the land adversely possessed. The full text of the Appellate Division memorandum decision in the Ahl case is as follows: "Supreme Court properly determined that plaintiff obtained title to the disputed parcel by adverse possession. Plaintiff established that, for a period of over 10 years, he and his predecessors in title possessed the disputed parcel and that their possession was open and notorious, exclusive, continuous, hostile and under claim of right... Because plaintiff was vested with title to the property by adverse possession, title may be transferred only by deed or other method recognized at law. The statement of plaintiff in a 'fence affidavit' after the statutory period had run that he did not claim the land does not constitute a legal transfer. The affidavit constitutes at most a recognition of record title in another, which is insufficient to divest plaintiff of title after the statutory period had run... Order and judgment unanimously affirmed without costs." It would appear, based on this decision that, in instances where a fence dividing two adjacent residential properties is located more than a "de minimis" distance (i.e. more than 1 foot) from the common boundary line depicted in their record deed descriptions, a two party, fully acknowledged boundary agreement should be entered into between the adjacent neighbors by which each adjacent neighbor confirms their record common property line, identifies the fence mislocation near that property line and quit claims to their adjacent neighbor ownership of all lands to that common boundary. ~STANDARD OF PROOF FOR FORGERY OF PROPERLY ACKNOWLEDGED DOCUMENT~ A recently decided appeal, Dembleuski v. Dembleuski (Appellate Division, 4th Department, decided December 30, 1999), reversed a lower court holding of forgery of a deed on the basis that the burden of proof of the forgery had not been met by the plaintiff. The Court in the Dembleuski action held as follows concerning the level of proof necessary to prove a forgery: "Supreme Court erred, following a bench trial, in awarding plaintiff's decedent a 50% interest in the 2055 Walden Avenue and Duke Road properties. It is well established that, 'where a document on its face is properly subscribed and bears the acknowledgement of a notary public, it give[s] rise to a presumption of due execution, which may be rebutted only upon a showing of clear and convincing evidence to the contrary'... Although plaintiff's decedent testified that his signature on various deedswere forged, that 'unsupported testimony of [an] interested witness' is insufficient to meet his burden of proof... thus, based upon the recorded deeds, we conclude that the plaintiff is entitled to only a 10% interest in the 2055 Walden Avenue and Duke Road properties, and we modify the judgment accordingly." Back to TopSERIES: Sixteen VOLUME: Seven DATED: July, 2001~COURT HOLDS THAT NO LIABILITY EXISTS UNDER A LOAN POLICY WHEN THE LOAN FUNDS SECURED ARE STOLEN BY INSURED MORTGAGEE'S CLOSER~ A recent Appellate Division decision, Fidelity National Title v. Consumer Home Mortgage (Appellate Division, 2nd Department, decided May 26, 2000), has held that when loan funds are never delivered to the borrowers because of being stolen by the attorney appointed as settlement agent for the lender, the mortgages insured were invalid and the title insurer who issued title insurance commitments in connection with the closing was entitled to a judgment declaring its loan title policy void and unenforceable. The Court summarized the facts in the case as follows: "The defendant, Consumer Home Mortgage, Inc... is in the business of lending money for the purchase of residential homes, with those loans secured by mortgages. In order to fund the mortgage loans it offers, Consumer entered into interim loans from lending institutions known as 'warehouse banks', and upon the closing of each loan, Consumer then sold the loan and mortgage to so-called 'secondary market investors' such as the federal national Mortgage Association... and Fleet Mortgage Corp... During 1996, Consumer entered into mortgage commitments, agreeing to loan money to several prospective buyers of residential property. The loans were to be secured by a note and mortgage as a lien on each of the subject properties to be purchased. Prior to closing, the prospective buyers obtained Loan Policies of Title Insurance from the plaintiff Fidelity National Title Insurance Company of New York... for the benefit of Consumer as mortgagee, insuring the validity and enforceability of the lien of each proposed mortgage. Also prior to closing, Consumer designated the defendant law firm Ferrara & Associates, P.C., and the defendant attorney Perry Ferrara... to act as its so-called 'settlement service provider'. Consumer then authorized the warehouse banks to wire the interim loan funds into an escrow account held by Ferrara, and authorized Ferrara to supervise the execution of loan documents at the closings and issue checks to the appropriate parties. In October 1996, the closings took place at Ferrara's offices, as designated, at which time the prospective buyers received deeds to the properties to be purchased, and in turn, they delivered to Consumer the respective notes and mortgages, in addition to the Loan Policies of Title Insurance. Shortly thereafter, all parties were notified that the checks drawn on the escrow account of Ferrara had been dishonored for insufficient funds. Fidelity refused to record the mortgages for lack of consideration, and moved for a declaration of the rights and obligations of all the parties. Consumer moved for summary judgment declaring that the loan policies were valid and enforceable, and demanded coverage from Fidelity for the loss incurred." The Court held as follows in declaring Fidelity's policies void and unenforceable: "Contrary to Consumer's contentions, title insurance insures against loss regarding title to the land, not the underlying debt... Moreover, where as here, the underlying debt has not been satisfied, the mortgage it was meant to secure must fail... Thus, the court properly determined that where there is no underlying debt, there is no valid mortgage, and that the loan policies purportedly insuring said mortgages were not valid or enforceable. Furthermore, coverage was properly denied pursuant to the exclusionary provision in the loan policy in which Fidelity expressly excluded coverage for any loss which Consumer 'created, suffered, assumed or agreed to'. Here, Consumer admittedly designated Ferrara as its settlement service provider by directing the funds earmarked for the mortgage loans to an escrow account maintained by Ferrara, and by authorizing Ferrara to perform certain duties on Consumer's behalf at the closings. Where a loss is caused by the fraud of a third party, in determining the liability as between two innocent parties, the loss should fall on the one who enabled the fraud to be committed... Thus, the actions of Ferrara were properly imputed to Consumer. As such, Consumer created the loss which is excluded from coverage." Back to Top
SERIES: Sixteen VOLUME: Six DATED: June, 2001Back to Top
SERIES: Sixteen VOLUME: Five DATED: May, 2001~~ ADVERSE POSSESSION BY FENCE PLACEMENT DENIED ~ In yet another case involving adverse possession claimed by fence placement, Bockowski v. Malak (Appellate Division, 2nd Department, decided February 20, 2001) the Court denied a plaintiffs' assertion of adverse possession by reason of a fence placement. In this case, the Court appears to have further refined the law in this troubled area (see Ahl v. Jackson, Monroe Title News, Series 15, Volume 8, August 2000). In the Bockowski action, the plaintiffs sought to permanently enjoin the defendant Malak, from trespassing upon the plaintiffs' property and to award the plaintiffs sole title and exclusive possession of a parcel of land adjoining their property. The appellate court affirmed a lower court decision which denied the plaintiffs' adverse possession and granted summary judgment awarding the property to the defendants. The Court's decision and order is as follows:
~ ADVERSE POSSESSION OF LANDS OWNED BY A MUNICIPALITY IN ITS GOVERNMENTAL CAPACITY DENIED~ A recently decided case, City of New York v. Sarnelli Brothers., Inc. (Appellant Division, 2nd Department, decided February 20, 2001) has upheld the common principle that lands held by a municipality in its governmental capacity may not be lost by adverse possession. The Sarnelli Brothers case was an action brought pursuant to RPAPL Section 15 to determine opposing claims to real property owned by the City of New York but allegedly occupied by Sarnelli Brothers since 1968. The Court decided in favor of the City with the following decision:
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SERIES: Sixteen VOLUME: Four DATED: April, 2001~~ ANOTHER TAX FORECLOSURE ACTION UPHELD DESPITE FAILURE OF MAIL SERVICE ~ In yet another appeal which has upheld the propriety of service in a completed tax foreclosure, Matter of Foreclosure of Tax Liens - Jensen, Barnett and Lucci v. County of Erie and Church of God in Christ (Appellate Division Fourth Department, decided December 27, 2000), the Appellate Court held that the County Court had properly denied an application to vacate a judgment of foreclosure and set aside the referee's sale of the petitioners' property. The Court's decision is as follows:
~ ADVERSE POSSESSION DENIED ~ A recently decided Appellate Division case has again set forth the requirements to prove adverse possession based on actions of a predecessor in title. In Avraham v. Lakeshore Yacht and Country Club (Appellate Division Fourth Department, decided December 27, 2000) the Court explained its decision rejecting an adverse possession claim as follows:
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SERIES: Sixteen VOLUME: Three DATED: March, 2001~ LANDOWNER BURDENED BY EXPRESS EASEMENT BARRED FROM ALTERATION MAKING ACCESS MORE DIFFICULT ~ Recently decided Appellate Division case has addressed the obligation of a landowner not to impair the easement holder's reasonably necessary and convenient right of passage. In the action Marek v. Woodcock and Rakvica et al (Appellate Division 3rd Department, decided November 28, 2000) the court determined that the easement holder's access could not be made more difficult in the following decision:
~ ADJACENT LANDOWNERS EASEMENT RIGHTS IN ABUTTING PRIVATE STREET UPHELD ~ In a recently decided Appellate Division action the Court affirmed a lower court order which refused to dismiss an action brought by landowners to enforce their easement rights in a private street abutting their property. In Bogan vs. Town of Mt. Pleasant (Appellate 2nd Department, decided December 12, 2000) the Appellate Court upheld the rights of abutting lot owners in adjacent private streets shown on a filed subdivision map as follows:
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SERIES: Sixteen VOLUME: Two DATED: February, 2001~ TAX FORECLOSURE ACTION UPHELD DESPITE FAILURE OF MAIL SERVICE ~ A recently decided action has illustrated the importance of owner's and mortgagees providing current mailing addresses to tax authorities. In this recently decided case the appellate court upheld the viability of a tax foreclosure action despite the failure of any notification of the commencement of the tax foreclosure to reach a party with a substantial interest in the foreclosed property. In Sendel v. Diskin and Dennin (Appellate Division Third Department, decided November 22, 2000) the court upheld the propriety of the tax foreclosure proceeding in the following opinion:
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SERIES: Sixteen VOLUME: One DATED: January, 2001~ SANFORD J. LIEBSCHUTZ ~ Sanford J. "Sandy" Liebschutz, a longtime Monroe Director, passed away December 22, 2000 after a long illness and hospitalization. Sandy was a member of Monroe's Board of Directors since 1970 and served as Chair of the Board's Investment Committee during most of his tenure as a Monroe Director. He was a partner at the Rochester law firm of Chamberlain, D'Amanda, Oppenheimer & Greenfield and served as an advisor and Board member for many Rochester area charities. At the time of his death he was Chairman of the Board of Directors of the Rochester Area Community Foundation. His able stewardship of Monroe's Investment Committee, his active participation as a Monroe Board member and his friendship will be sorely missed by his colleagues on Monroe's Board as well as Monroe's Rochester office employees. ~ COMMON DRIVEWAY USE UPHELD ~ A recently decided Appellate Division case, Nicola Niceforo et al., d/b/a Papa's Family Diner v. Elizabeth Haeussler, d/b/a/ Elizabeth's Unisex Salon (Appellate Division, Third Department, decided October 26, 2000) examined the requirements of an easement appurtenant. The plaintiffs and defendants in this action were 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 were originally owned by Albert and Lucy Smith and when the Smiths conveyed 209 Delaware Street to Sutliff in 1920, that conveyance included "the right to use for the purpose of a driveway, in common with the party owning [defendant's property], the strip of land... immediately easterly of the property hereinbefore conveyed, which strip is 10 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, when the Smiths conveyed the adjoining parcel at 207 Delaware Street to one of the defendant's predecessors in title, the deed contained language "excepting and reserving from said parcel the rights and privileges hereto conveyed to... Sutliff". In 1934, Sutliff conveyed 209 Delaware Street to Benson, including "all her right, title and interest in the use of a driveway lying easterly of the property conveyed by this deed, the use of which drive 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 the Papa's Family Diner group acquired the parcel in 1992 by a deed that referenced and included the "10 foot wide driveway easement" and utilized the driveway for access to their parking lot located to the rear of their property. The defendant, Elizabeth's Unisex Salon, then acquired the adjoining parcel at 207 Delaware where she resides and operates her hair salon and a dispute eventually arose concerning the use of the driveway. The plaintiff, Papa's Family Diner commenced this action seeking a declaration that they had a right of ingress and egress over the driveway to their parking lot. The lower court granted Papa's Diner partial summary judgment and declared that they did indeed have an easement, in common with the defendant, of which they could make reasonable use for ingress to and egress from their property. The defendant, Elizabeth's Unisex Salon appealed that decision to the Appellate Division which held as follows:
One can wonder what the Court would have held had the issues of demolition of the former residence of Sutliff and the greatly expanded commercial use of the right-of-way had been preserved for appeal. Nevertheless, the case does provide a clear statement of principles commonly applied by the Courts to determine the existence of easements appurtenant. Back to Top |
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