| Faviola, LLC v Patel |
| 2014 NY Slip Op 01147 [114 AD3d 823] |
| February 19, 2014 |
| Appellate Division, Second Department |
| Faviola, LLC, Respondent, v Pravinkumar Patel etal., Appellants, et al., Defendants. |
—[*1] Sheldon Lobel, P.C., New York, N.Y. (Richard Lobel of counsel), forrespondent.
In an action pursuant to RPAPL article 15 for a judgment declaring that the plaintiffhas an easement by necessity for ingress and egress over a portion of certain realproperty, and for injunctive relief, the defendants Pravinkumar Patel and Anita Patelappeal from an order and judgment (one paper) of the Supreme Court, Queens County(Schulman, J.), entered May 3, 2012, which, in effect, granted the plaintiff's motion toconfirm a referee's report dated September 14, 2011, and denied their cross motion toreject the referee's report, and declared that the plaintiff has a right-of-way accesseasement over the alleyway located along the easterly five feet of the subject property,directed them to remove any existing obstructions that interfere with the plaintiff'seasement, and permanently enjoined them from interfering with the plaintiff's access toand transit across the subject alleyway.
Ordered that the order and judgment is affirmed, with costs.
The plaintiff sought a judgment declaring that it had an easement by necessity overan alleyway on certain real property, designated lot 115, in order to access its property,designated lot 215. The Supreme Court properly declared that the plaintiff has aright-of-way access easement over the alleyway, properly directed the owners of thesubject property, the defendants Pravinkumar Patel and Anita Patel (hereinafter togetherthe Patel defendants), to remove any obstructions from the alleyway, and properlyenjoined them from interfering with the plaintiff's access to and transit across the subjectalleyway.
The party asserting that it has an easement by necessity bears the burden ofestablishing by clear and convincing evidence that there was a unity and subsequentseparation of title, and that at the time of severance, an easement over the servient estatewas absolutely necessary to obtain access to the party's land (see Simone v Heidelberg, 9NY3d 177, 182 [2007]; Foti v Noftsier, 72 AD3d 1605, 1607 [2010]; Smiley Realty of Brooklyn, LLC vExcello Film Pak, Inc., 67 AD3d 891, 892 [2009]; U.S. Cablevision Corp. vTheodoreu, 192 AD2d 835, 838 [1993]). The necessity must exist in fact and not asa mere convenience, and must be indispensable to the reasonable use of the adjacentproperty (see Simone v Heidelberg, 9 NY3d at 182; Heyman v Biggs,223 NY 118, 125-126 [1918]; Town of Pound Ridge v Golenbock, 264 AD2d773, 774 [1999]; U.S. Cablevision Corp. v Theodoreu, 192 AD2d at 838). Thereis no dispute here that there was unity and subsequent separation of title, as the Pateldefendants acknowledge that they owned both lots 115 and 215 from January 1991 untilApril 1996, when lot [*2]115 was subdivided and lot 215was sold to the plaintiff's predecessor in interest.
The plaintiff established that the easement through the alleyway on lot 115 wasabsolutely necessary to gain access to lot 215. The Patel defendants do not dispute thatlot 215 has no direct access to a public highway or street, without the necessity ofcrossing a lot owned by the Patel defendants or by a third party. The plaintiff adducedproof that, upon subdivision, lot 215 became landlocked with no access to a publichighway or street (see Stock v Ostrander, 233 AD2d 816, 817-818 [1996];Wolfe v Belzer, 184 AD2d 691 [1992]; cf. Shute v McLusky, 96 AD3d1360, 1361 [2012]; Klumpp v Freund, 83 AD3d 790, 793 [2011]). Thelandlocked status of lot 215 was a direct result of the partition effected by the Pateldefendants' subdivision of lot 115, and the sale of lot 215, in 1996. That landlockedstatus gave rise to a right-of-way by necessity across lot 115 for the benefit of lot 215 (see Bogart v Roven, 8 AD3d600, 602 [2004]). The need to use the alleyway on lot 115 to access the property wasnot a mere convenience (cf. Simone v Heidelberg, 9 NY3d at 182;Pickett v Whipple, 216 AD2d 833, 835 [1995]).
Accordingly, the Supreme Court properly declared that the plaintiff has aright-of-way access easement over the subject alleyway located along the easterly fivefeet of the subject property, directed the Patel defendants to remove any existingobstructions that interfere with the plaintiff's easement, and permanently enjoined thePatel defendants from interfering with the plaintiff's access to and transit across thesubject alleyway. Mastro, J.P., Roman, Miller and Hinds-Radix, JJ., concur.