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April 3, 1992


The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM


 Plaintiffs Landgray Associates ("Landgray") and Graybar Building Company ("Graybar") seek an injunction compelling defendants 450 Lexington Venture, L.P. ("450 Lexington"), the Turner Corporation ("Turner"), and the United States Postal Service (the "Postal Service") to remove water cooling towers from a roof courtyard on the second story of a building located at 450 Lexington Avenue, New York, New York. The Postal Service, which removed this action to federal court, owns 450 Lexington Avenue, known as the Grand Central Post Office (the "Post Office"). Defendant 450 Lexington, a Delaware limited partnership, is the net lessee of a portion of the Postal Service property pursuant to a ninety-nine-year net lease. Plaintiff Landgray, a New York partnership, owns the land and the building at 420 Lexington Avenue, adjacent to the Post Office on its south side and known as the Graybar Building. Graybar, also a New York partnership, is the operating sub-sublessee of the Graybar Building.

 450 Lexington has engaged defendant Turner, a New York corporation, to construct an office tower on top of the Post Office. In connection with this construction, defendants installed cooling towers on the Post Office side of the second-story courtyard formed by the Graybar Building setback and the Post Office setback. The cooling towers are to function as part of the Post Office's air circulation system, removing heat that develops inside the building.

 Plaintiffs allege that placement of the cooling towers in the second-story courtyard violates an easement of light and air created by a 1932 indenture, as modified by a 1936 agreement between the parties' predecessors in interest. Defendants argue that a Postal Service mail conveyor structure that was maintained for more than ten years in the second-story courtyard extinguished or diminished the easement by adverse use for the prescriptive period. Defendants also contend that plaintiffs' equitable action is barred by laches.

 In accordance with Fed. R. Civ. P. 65(a)(2) and with the consent of the parties, after expedited discovery, the evidence in this case was presented at a two-day consolidated bench trial and preliminary injunction hearing. At the request of plaintiffs, the trial began in the second-story courtyard. I examined the cooling towers, the markings remaining from the mail conveyor structure, and the Graybar Building's windows that face the cooling towers. The proceedings were then adjourned to the courthouse, where eight witnesses testified. After observing the demeanor of the witnesses and evaluating the plausibility and credibility of the testimony, and after reviewing the documentary evidence introduced at trial, I conclude that plaintiffs are not entitled to an injunction directing defendants to remove the cooling towers.


 It is uncontested that defendants' installation of the cooling towers in the second-story courtyard violates the terms of the indenture which created the courtyard easement. The central issue is whether by building a conveyor structure, and maintaining it in the courtyard for more than ten years, the Postal Service extinguished or diminished the easement by adverse use.

 The parties first discussed the cooling towers during the summer of 1990. In July 1990, during the course of constructing the tower on top of the Post Office, Jeffrey Spiritos, project manager of 450 Lexington, became aware that additional structural supports might be needed to support the cooling towers which he planned to install in the second-story courtyard. (Tr. at 376.) He contacted Landgray to request permission to attach the cooling towers' structural supports to the shared "party" wall of the two buildings and to gain access to the Graybar Building during the installation. (Tr. at 377.)

 On August 7, 1990, representatives of 450 Lexington, including Spiritos, met with representatives of the Graybar Building, including Charles Mclntyre, vice-president of the general partner of Landgray Associates, and Steven M. Durels, a vice-president of Helmsley Spear Inc., the managing and leasing agent for the Graybar Building. (Tr. at 382.) Spiritos explained the placement of the cooling towers, answered questions concerning operation of the towers, and requested permission to make structural tie-ins to the party wall shared by the buildings. (Id.)

 Spiritos testified that the meeting was limited to questions concerning the cooling towers and structural supports. (Tr. at 383.) It was his impression that if he answered these questions, 450 Lexington would be able to proceed with the structural supports for the cooling towers. (Id.)

 Mclntyre testified that he told Spiritos at this meeting that "not only would we not give permission to tie in the dunnage beams into the structure of the Graybar Building but that the cooling tower violated our light and air easement and we objected to the cooling tower." (Tr. at 20-21.) Durels, who was present throughout Mclntyre's testimony, echoed Mclntyre's testimony on this point. (Tr. at 11.) Durels testified that plaintiffs registered a "blanket objection" to installation of the cooling towers and told Spiritos that "we wouldn't permit anything like that." (Tr. at 86-87.) Although Durels was a forthcoming witness as to some matters, on this point he appeared to be uncomfortable and guarded. I do not credit either Mclntyre or Durels' testimony in this regard both because of their demeanor and because of the implausibility of the testimony in light of their subsequent conduct.

 Following the August 1990 meeting, Spiritos wrote to Durels requesting written approval of "the work required for installing the cooling towers." (Defs.' Ex. M.) He received no response. (Tr. at 386.) In fact, despite receiving numerous phone messages from Spiritos, Mclntyre failed to respond in any fashion and, after the August 1990 meeting, did not object orally or in writing to installation of the cooling towers. (Tr. at 39-40, 386.) McIntyre testified that he did not accept or return any of Spiritos' telephone calls because he was "busy with other things." (Tr. at 26-27.)

 By letter dated September 26, 1990, Spiritos informed Mclntyre and Durels that 450 Lexington had determined that the cooling towers could be installed without structural tie-ins to the Graybar Building. (Pls.' Ex. 16.) This letter also advised that "we shall be proceeding with this work." (Id.) Mclntyre received this letter but chose not to respond to it. (Tr. at 28.)

 Defendants proceeded to install the cooling towers in early February 1991. (Tr. at 366.) Mclntyre testified that he did not know until July 1991 that the towers had actually been installed. (Tr. at 29.) Durels, whose office was on the second story of the Graybar Building throughout 1991, (Tr. at 65), testified that he was unaware of the presence of the cooling towers in the second-story courtyard until the Graybar Building's vice-president of operations brought the matter to his attention. (Tr. at 67-8). Durels, however, could not recall when this occurred. (Tr. at 68.)

 By letter dated August 15, 1991, nearly eleven months after 450 Lexington gave notice that it would proceed to install the cooling towers, and six months after the installation was completed, plaintiffs first objected in writing to the installation. (Pls.' Ex. 21.)

 The Easement

 Landgray purchased 420 Lexington Avenue (the "Graybar parcel") in 1979. The bargain and sale deed conveys the easement of light and air created by a 1932 deed between the United States of America and the New York Central Railroad Company as modified by an agreement dated June 9, 1936. (Pls.' Ex. 10 at 25.)

 Prior to 1932, the railroad owned both the Graybar parcel and 450 Lexington Avenue. In 1932, the railroad conveyed 450 Lexington Avenue to the United States of America. (Pls.' Ex. 2.) The United States, for itself, its successors, and assigns covenanted ...

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