| Sassouni v Krim |
| 2009 NY Slip Op 09453 [68 AD3d 968] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Rafael Sassouni et al., Appellants, v Mathilde Krim,Respondent. |
—[*1] Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer and A.Thomas Levin of counsel), for respondent.
In an action, inter alia, for a judgment declaring that a right-of-way agreement does not grantthe defendant the right to use the pier and dock constructed on the plaintiffs' real property, theplaintiffs appeal, as limited by their brief, from so much of an order and judgment (one paper), ofthe Supreme Court, Nassau County (LaMarca, J.), entered December 15, 2008, as granted thedefendant's motion for summary judgment, denied their cross motion for summary judgment onthe complaint, and declared that the right-of-way agreement grants, to the defendant, her heirsand assigns, and any subsequent transferees of the defendant's property, the right of ingress toand egress from the pier and dock for any purpose, including, without limitation, the right toenter upon and use the pier and dock.
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
In the 1950s the defendant and her now-deceased husband (hereinafter the Krims) purchasedapproximately seven acres of property on Dock Lane in Kings Point (hereinafter the Krimproperty). The Krim property is located adjacent to other property, also located on Dock Lane(hereinafter the Benjamin property), previously owned by their close friends Robert Benjaminand Jean Benjamin (hereinafter the Benjamins). A pier and dock located on the Benjaminproperty extend out into the waters of Manhasset Bay. The Benjamins and the Krims primarilyused the pier for boating and as a walkway, and the dock for boating. As the years passed, theBenjamins' use of the pier and dock waned, but the Krims continued to use them. After the pierand dock sustained serious storm damage in the 1970s, the Krims, with the knowledge andconsent of the Benjamins, expended significant sums to repair the pier and rebuild the dock. In1992 the pier and dock were severely damaged by another storm. By this time, Robert Benjaminhad died, and the defendant's husband was in failing health. After the defendant's husband diedin 1994 she decided to reconstruct the pier. With the knowledge and cooperation of JeanBenjamin, the defendant expended the sum of approximately $160,000 on the reconstructionproject.
On February 14, 1998 the defendant and Jean Benjamin signed an agreement,pursuant to which Jean Benjamin granted, to the defendant, her heirs and assigns, and anysubsequent transferees [*2]of the Krim property, a right-of-wayalong a 22-foot wide strip of land for "ingress and egress for any purpose along said right of wayand to the pier that is presently constructed or which may hereafter be constructed." Theagreement also provided that the right-of-way was intended to run with the lands of both partiesto the agreement. The agreement was duly recorded in the Office of the County Clerk, County ofNassau, on April 6, 1998. At some point thereafter, Jean Benjamin relocated to Massachusetts.In September 2005 she sold her property to the plaintiffs. In December 2006 the plaintiffscommenced this declaratory judgment action against the defendant. In an order and judgment,the Supreme Court granted the defendant's motion for summary judgment, denied the plaintiffs'cross motion for summary judgment on the complaint, and declared that the agreement grantedthe defendant, her heirs and assigns, and any subsequent transferees of the Krim property theright of ingress to and egress from the pier and dock for any purpose, including, but not limitedto, the right to enter upon and use the pier and dock. We affirm.
The defendant established her prima facie entitlement to judgment as a matter of law byproffering evidence showing that the agreement dated February 14, 1998, granted to her, herheirs and assigns, and any subsequent transferees of the Krim property, an easement appurtenantover the Benjamin property. The grant of the right-of-way over the 22-foot strip of land was inwriting, subscribed by Jean Benjamin in her capacity as grantor, and burdened the Benjaminproperty, as the servient estate, for the benefit of the Krim property, as the dominant estate(see Corrarino v Byrnes, 43 AD3d 421, 423 [2007]; Webster v Ragona, 7 AD3d850, 853 [2004]). Furthermore, the grant, written in general terms, included ingress to and egressfrom the pier and dock "for any purpose," and contained no language limiting or restricting itsuse to mere ingress or egress (see Hedberg v Brew, 266 AD2d 432 [1999]; Mandia vKing Lbr. & Plywood Co., 179 AD2d 150, 158 [1992]). Thus, the intent of the parties, asconstrued from the entire instrument (see Somers v Shatz, 22 AD3d 565, 566 [2005]),was for the defendant, her heirs and assigns, and any subsequent transferees of the defendant'sproperty, to have a right-of-way over the 22-foot strip of land not only for ingress to and egressfrom the pier and dock, but also for any purpose, including access to and use of the pier anddock. Even if the language contained in the grant were found to be ambiguous or unclear, "thesurrounding circumstances and the situation of the parties when it was executed demonstrate thepurpose of the easement" (Hedberg v Brew, 266 AD2d at 432; see Board of Mgrs. ofBayside Plaza Condominium v Mittman, 50 AD3d 718, 719 [2008]; Phillips vJacobsen, 117 AD2d 785, 786 [1986]). Finally, the evidence established that the plaintiffshad record notice of the easement when they took title to the Benjamin property (see Farrellv Sitaras, 22 AD3d 518, 520 [2005]).
In opposition to the defendant's showing, the plaintiffs failed to raise a triable issue of factand, thus, also failed to establish their prima facie entitlement to summary judgment in theirfavor. Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment and denied the plaintiffs' cross motion for summary judgment on the complaint.
The plaintiffs' remaining contentions are without merit. Fisher, J.P., Angiolillo, Lott andSgroi, JJ., concur. [Prior Case History: 2008 NY Slip Op 33412(U).]