| Ribellino v 110 Fifth St. Private, LLC |
| 2013 NY Slip Op 08426 [112 AD3d 807] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Richard Ribellino, Appellant, v 110 Fifth StreetPrivate, LLC, Respondent. |
—[*1] Goldberg & Rimberg, PLLC, New York, N.Y. (Israel Goldberg and Mindy Kallus ofcounsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is permitted to parkon an easement over certain land owned by the defendant, the plaintiff appeals from ajudgment of the Supreme Court, Kings County (F. Rivera, J.), dated July 5, 2012, which,after a framed-issue hearing, declared that the plaintiff is prohibited from parking on thesubject easement as defined in the parties' settlement agreement dated July 21, 2011.
Ordered that the judgment is reversed, on the law, with costs, and the matter isremitted to the Supreme Court, Kings County, for the entry of an amended judgmentdeclaring that the plaintiff is permitted to park on the subject easement as defined in theparties' settlement agreement dated July 21, 2011.
In 1987, the plaintiff purchased real property in Brooklyn benefitted by an easement.Previously, in 1950, the Brooklyn Improvement Company created the easement by agrant in a deed, which provides "access to and the reasonable use" of an adjacent privateroad known as Fifth Street (approximately 30 feet wide and 298 feet long). At the time,the Brooklyn Improvement Company owned both the dominant and servient estates. Theplaintiff's property includes, inter alia, five commercial buildings, three of which faceFifth Street, of which two may only be accessed by Fifth Street. In 1987, C & AProperties II Corp. (hereinafter C & A) owned the servient estate, consisting of FifthStreet and two other parcels of property adjacent to the plaintiff's property, which mayonly be accessed by Fifth Street. Since 1987, the plaintiff and his tenants have parkedvehicles on Fifth Street. In 2008, the plaintiff commenced the instant action against C &A, inter alia, for a judgment declaring the plaintiff's rights concerning the easement.Thereafter, on August 25, 2010, the defendant purchased the servient estate from C & A.The defendant's principal operated a bus company and used the servient estate, inter alia,as parking for his buses. Pursuant to a stipulation dated October 22, 2010, the defendantwas substituted in this action for C & A.
Thereafter, the parties entered into a so-ordered stipulation dated July 21, 2011,pursuant to which the parties agreed to limit the scope of the instant action to the singleissue of[*2]"whether or not parking within Zones A andB (as defined by the incorporated settlement agreement) of the easement by [theplaintiff], his companies, affiliates, agents, employees, invitees, successors, assigns,servants, independent contractors, tenants, subtenants, and licensees is a reasonable orpermitted use of the easement," to be determined by a court following a framed-issuehearing. In an incorporated settlement agreement dated July 21, 2011, the parties outlinedtheir respective rights as to the easement. The easement was deemed divided into fourdifferent zones. Zones A and B lay directly adjacent to the plaintiff's property and extendon Fifth Street 15 feet from the plaintiff's property. The parties agreed that the plaintiffmay use Zones A and B to load and unload vehicles, provided that such vehicles wereparked parallel and as close to the plaintiff's property as possible. The parties agreed thatdouble parking was prohibited.
At the framed-issue hearing, the defendant argued that parking on the easement bythe plaintiff and his tenants unreasonably blocked the ingress and egress of its buses. TheSupreme Court agreed with the defendant, holding that the plaintiff was prohibited fromparking on the easement.
The grant of the easement specifically stated that the plaintiff shall have "access toand reasonable use" of Fifth Street, provided that such use did not "interfere with norunreasonably obstruct reasonable use" of Fifth Street by other owners or occupants. Todetermine whether parking constituted a reasonable use of the easement, the court mayconsider the surrounding circumstances when the easement was executed to discover thepurpose of the easement (seeSassouni v Krim, 68 AD3d 968, 970 [2009]; Antonopulos v Postal Tel.Cable Co., 261 App Div 564, 566 [1941], affd 287 NY 712 [1942]). Here,however, no evidence was presented as to the circumstances surrounding the easementwhen it was executed in 1950. Nevertheless, there was uncontroverted evidence that,since 1987, the plaintiff and his tenants routinely parked on the easement, and there wasno evidence that there was any objection to such parking prior to the instant action. Asthe plaintiff and his tenants continued to use the easement for parking for more than 20years, without evidence of objection, such long-time use of the easement was compellingevidence of the scope and purpose of the easement substantiating the plaintiff's position(see Di Leo v Pecksto Holding Corp., 304 NY 505, 514 [1952]; Onthank vLake Shore & Mich. S. R.R. Co., 71 NY 194, 197 [1877]; Albright v Davey, 68 AD3d1490, 1492-1493 [2009]; Green v Mann, 237 AD2d 566, 567 [1997];Mittnacht v Montana, 205 App Div 643, 646 [1923]; see also 49 NY Jur2d, Easements and Licenses in Real Property § 105). Contrary to the defendant'scontention, the evidence was insufficient to establish that its use of the easement wasobstructed. Given that the easement was 30-feet wide, the defendant failed to show thatthe plaintiff, by parking along his property, would block the ingress and egress of thedefendant's buses, even with buses parked on the opposite side of the easement. Further,the defendant's contention that parking on the easement may lead to double parking,which would impede the defendant's ingress and egress from its property, wasspeculative and unsupported by the record, as the parties had agreed that double parkingwas prohibited.
Accordingly, the plaintiff is entitled to a judgment declaring that he is permitted topark on the subject easement as defined in the parties' settlement agreement dated July21, 2011. Dickerson, J.P., Chambers, Roman and Miller, JJ., concur. [Prior CaseHistory: 36 Misc 3d 1209(A), 2012 NY Slip Op 51235(U).]