Chiariello & Chiariello, Glen Cove, NY (Gerald Chiariello
II of counsel), for appellant.
Certilman Balin Adler & Hyman, LLP, East Meadow, NY
(Donna-Marie Korth and Paul A. Pagano of counsel), for
C. DILLON, J.P. SANDRA L. SGROI SYLVIA O. HINDS-RADIX ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
action pursuant to RPAPL article 15 for a judgment declaring,
inter alia, that the plaintiff has an easement by necessity
for ingress and egress and for parking over a portion of
certain real property, the plaintiff appeals, as limited by
its brief, from so much of an order of the Supreme Court,
Nassau County (Bruno, J.), entered September 14, 2016, as, in
effect, granted that branch of the motion of the defendant
J.H. Coles Homestead, LLC, which was pursuant to CPLR
3211(a)(7) to dismiss the complaint insofar as asserted
against it and denied its cross motion for summary judgment
on the complaint.
that the order is affirmed insofar as appealed from, with
costs, and the matter is remitted to the Supreme Court,
Nassau County, for further proceedings, and thereafter, for
the entry of a judgment, inter alia, declaring that the
plaintiff does not have an easement by necessity and that the
approval of the City of Glen Cove Planning Board was not
required to extinguish the easement.
plaintiff is the owner of real property located at 147 Glen
Street in Glen Cove (hereinafter the subject property),
having purchased it from the defendant 149 Glen Street Corp.
in September 2009. The defendant J.H. Coles Homestead, LLC
(hereinafter the defendant), is the owner of adjoining real
property located at 149 Glen Street (hereinafter the
adjoining property), having purchased it from 149 Glen Street
Corp. in February 2016.
subject property and the adjoining property were a single
large parcel until 1974, when the City of Glen Cove Planning
Board (hereinafter Planning Board) granted the application of
the then-owner to subdivide the parcel. At the time of the
subdivision application, the then-owner informed the Planning
Board that he would retain ownership of the portion which is
now the subject property and that he intended to sell the
portion which is now the adjoining property. As part of this
arrangement, he would also retain a right-of-way over the
adjoining property for ingress and egress and for the parking
of several vehicles. After the subdivision was approved on
March 19, 1974, the adjoining property was sold to a third
party, and the deed reflecting the transaction contained the
aforesaid right-of-way. On October 25, 2007, 149 Glen Street
Corp. acquired title to the adjoining property, but the deed
did not contain any reference to an easement or right-of-way.
On October 31, 2008, 149 Glen Street Corp. acquired title to
the subject property. Thus, as of October 31, 2008, both the
subject property and the adjoining property were owned by 149
Glen Street Corp. On November 20, 2008, 149 Glen Street Corp.
recorded a release of easement with the Nassau County Clerk.
On September 29, 2009, 149 Glen Street Corp. sold the subject
property to the plaintiff and, in a handwritten agreement of
the same date, granted the plaintiff access to the rear of
the adjoining property for loading and unloading goods
through the back door of the building on the subject property
and for the parking of three vehicles in the lot on the
adjoining property. The agreement specified that it was to
exist only so long as the parties to the agreement owned the
January 2016, upon learning that 149 Glen Street Corp. was in
the process of selling the adjoining property, the plaintiff
commenced this action against 149 Glen Street Corp. The
plaintiff, knowing that the 2009 agreement providing it
access to the rear of the adjoining property would terminate
upon the sale of the adjoining property, sought a
declaration, inter alia, that it had an easement by necessity
and that the 1974 easement had been improperly extinguished,
as 149 Glen Street Corp. was required to obtain prior
Planning Board approval. In a deed dated February 1, 2016,
149 Glen Street Corp. conveyed the adjoining property to the
defendant. The deed did not contain any language regarding an
easement or right-of-way. In an order entered June 24, 2016,
the Supreme Court granted the defendant's unopposed
motion for leave to intervene in the action. Shortly
thereafter, the defendant moved pursuant to CPLR 3211(a)(1)
and (7) to dismiss the complaint insofar as asserted against
it. The plaintiff cross-moved for summary judgment on the
complaint. The Supreme Court, in effect, granted that branch
of the defendant's motion which was pursuant to CPLR
3211(a)(7) to dismiss the complaint for failure to state a
cause of action and denied the plaintiff's cross motion
for summary judgment on the complaint. The plaintiff appeals.
easement is not a personal right of the landowner but is an
appurtenance to the land benefitted by it (the dominant
estate). It is inseparable from the land and a grant of the
land carries with it the grant of the easement"
(Will v Gates, 89 N.Y.2d 778, 783). An easement is
extinguished by merger when one party acquires title to both
parcels (see Simone v Heidelberg, 9 N.Y.3d 177, 180;
Will v Gates, 89 N.Y.2d at 784). Here, the subject
property and the adjoining property came under common
ownership on October 31, 2008, when 149 Glen Street Corp.
acquired title to the subject property, and thus, owned both
pieces of property. As such, the easement that came into
existence in 1974 was extinguished by merger.
considering a motion to dismiss pursuant to CPLR 3211(a)(7),
the court is required to accept the facts as alleged in the
complaint as true, accord the plaintiff the benefit of every
favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory" (New
York Tile Wholesale Corp. v Thomas Fatato Realty Corp.,
___ A.D.3d ___, 2017 NY Slip Op 06538 [2d Dept 2017]). Here,
even accepting the plaintiff's allegations as true and
affording it the benefit of every favorable inference, the
Supreme Court properly determined that the first three causes
of action failed to fit into any legally cognizable theory,
as they were based on speculative and conclusory factual
allegations and bare legal conclusions, inter alia, that 149
Glen Street Corp. was required to obtain Planning Board
approval before the easement could be extinguished (see
Cruciate v O'Donnell & McLaughlin, Esqs., 149
A.D.3d 1034, 1035). Likewise, the fourth cause of action, for
a declaration that the plaintiff had an easement by
necessity, contained only vague and conclusory allegations
and failed to allege that an easement over the adjoining
property was absolutely necessary for access to the subject
property, which fronts on a public street (cf. Faviola,
LLC v Patel, 114 A.D.3d 823). For the same reasons, the
court also properly denied the plaintiff's motion for
summary judgment on the complaint.
plaintiff's remaining contentions are improperly raised
for the first time on appeal.
this is a declaratory judgment action, the matter must be
remitted to the Supreme Court, Nassau County, for further
proceedings, and thereafter, for the entry of a judgment,
inter alia, declaring that the plaintiff does not have an
easement by necessity and that the approval of the City of
Glen Cove ...