You are here: / / A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT...
,

A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT AND SERVIENT PROPERTY; HERE THE CRITERIA FOR A DEEDED EASEMENT WERE NOT MET; BUT THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs did not demonstrate they had a deeded easement over the disputed land, but did demonstrate they had a prescriptive easement, although the extent of the easement must be determined at trial:

“An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it . . . and a grant of the land carries with it the grant of the easement” … . “An easement appurtenant occurs when [an] easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate” … . However, “[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so called ‘stranger to the deed,’ does not create a valid interest in favor of that third party” … . Thus, “[f]or an easement by grant to be effective, the dominant and servient properties must have a common grantor” … .

Here, the defendant made a prima facie showing of his entitlement to judgment as a matter of law declaring that the plaintiffs do not have a deeded easement over the disputed area by “establishing that, at the time the easement was purportedly created, the grantor owned the servient property, but not the dominant property … .  * * *

… [P]laintiffs established … their predecessors in interest acquired an easement by prescription over the disputed area, which easement ran with the land when the plaintiffs purchased the property in 2018 … . Notably, the defendant learned of the purported deeded easement in 2005 and assumed that it was valid until at least July 2019. Therefore, the defendant’s relationship to the dominant estate’s use of the driveway area was one of acquiescence, rather than permission … . … Supreme Court erred in denying that branch of the plaintiffs’ cross-motion which was for summary judgment declaring that they have a prescriptive easement over the disputed area. Daniello v Wagner, 2023 NY Slip Op 06116, Second Dept 11-29-23

Practice Point: The criteria for a deeded easement and a prescriptive easement are clearly explained.

 

You might also like
MOTHER, WHO WAS REPRESENTING HERSELF IN THIS TERMINATION-OF-PARENTAL-RIGHTS PROCEEDING, WAS DENIED DUE PROCESS BY THE JUDGE’S (1) COMMENCING THE HEARING WITHOUT HER, (2) SUBSEQUENTLY EXCLUDING HER FROM THE COURTROOM, (3) DENYING HER REQUEST FOR DOCUMENTS WHICH WERE IN EVIDENCE, (4) AND DENYING HER REQUEST FOR AN ADJOURNMENT TO CONSULT WITH HER LEGAL ADVISOR (SECOND DEPT). ​
PHARMACIST’S DUTY OF CARE CLEARLY ARTICULATED AFTER IN-DEPTH ANALYSIS; SUMMARY JUDGMENT DISMISSING THE NEGLIGENCE/WRONGFUL DEATH CAUSES OF ACTION AGAINST THE PHARMACIST AND PHARMACY SHOULD HAVE BEEN GRANTED.
EVIDENCE FATHER POSSESSED COCAINE WITH INTENT TO SELL WAS NOT SUFFICIENT TO SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE FATHER USED DRUGS, EXPOSED THE CHILDREN TO DRUG-DEALING, OR STORED THE DRUGS WHERE THE CHILDREN COULD ACCESS THEM (SECOND DEPT).
ACTION AGAINST GAS COMPANY FOR CONTAMINATION OF REAL PROPERTY ACCRUED WHEN INJURY SHOULD HAVE BEEN DISCOVERED AND WAS TIME BARRED; ACTION FOR NUISANCE RELATING TO REMEDIATION EFFORTS, HOWEVER, IS SUBJECT TO A DIFFERENT STATUTE OF LIMITATIONS PROVISION AND WAS NOT TIME-BARRED (SECOND DEPT).
CONSCIOUS PAIN AND SUFFERING CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, EXPERT OPINION EVIDENCE SHOULD NOT HAVE BEEN ACCORDED ANY PROBATIVE FORCE.
WITHOUT EVIDENCE THE TWO POSSESSION-OF-A-WEAPON CHARGES RELATED TO DISTINCT EVENTS, CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED (SECOND DEPT).
GENETIC MARKER TESTING SHOULD NOT BE ORDERED BEFORE RESOLUTION OF WHETHER THE DOCTRINE OF EQUITABLE ESTOPPEL APPLIES TO PRECLUDE DENIAL OF PATERNITY.
THE BANK’S DOCUMENTARY EVIDENCE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT... ONLY CONTRACTORS AND OWNERS AND THEIR AGENTS CAN BE LIABLE UNDER LABOR LAW 240(1)...