The Second Department, reversing Supreme Court (referee), determined the easement granted to defendants was valid. The easement related to an area which included a stucco wall and a covered wooden deck. The fact that the area may not have been accurately described by metes and bounds did not defeat the validity of the easement:
“In order to create an easement by express grant, plain and direct language must be used which evidences the grantor’s intention to permanently give a use of the servient estate to the dominant estate” … . The extent of an easement claimed under a grant is generally determined by the language of the grant … . The fact that the easement grant does not give the precise location of the easement is not fatal to a finding that an easement was intended … . Where the language of the grant is ambiguous or unclear, the court will consider surrounding circumstances tending to show the grantor’s intent in creating the easement … .
… [W]here, as here, the language was ambiguous, the Supreme Court should have considered “the surrounding circumstances and the situation of the parties when it was executed” … . The evidence presented at the hearing, which included the testimony of Emily Mazzuoccola [defendant], surveys, and photographs, demonstrated that the grantor intended to grant a perpetual easement with regard to the disputed area of land … containing improvements of a stucco wall and a covered wooden deck. The easement was specifically referenced on a survey dated July 2, 2002. Accordingly, the court should have determined that the subject easement was valid. Marino v Mazzuoccola, 2021 NY Slip Op 08176, Second Dept 2-24-21