Scott E. Mollen
Scott E. Mollen ()

Easements—Defendants Removed Vegetation and Cleared a Foot Path Pursuant to an Alleged Easement—Plaintiffs Sued for Trespass and for Treble Damages for Removal and Destruction of Trees Under RPAPL 861 and For a Declaratory Judgment that the Easement is Invalid

THE PLAINTIFFS HAD COMMENCED an action for, inter alia, “a declaration of the parties’ rights and obligations with respect to a ‘pedestrian walk way’” (path), “located in a residential subdivision” which was “presumably intended to provide access to a body of water….” A developer had created a subdivision, consisting of 11 lots. Seven lots were located directly on the water. Four lots (out lots) were separated from the water by a road. At or about the time that the subdivision was developed, “an easement was filed that purported to reserve a five-foot [path] between two of the lots fronting on [the water].” The easement reserved the path “solely for the pedestrian use of owners” of the out lots.

The defendants own the four out lots “and for whose benefit the [path] was presumably created.”

The plaintiffs asserted that when they purchased their lot, “the [path] was an unused, barely-visible path that was protected by a 30-foot high canopy of mature, fully-grown trees.” The plaintiffs claimed that agents of two defendants (defendants) “entered upon and…recklessly cleared the [path], removing trees both within and without its borders, destroying the tree canopy, and creating a condition significantly beyond that required to accommodate a pedestrian walkway.”

The defendants asserted a “right to clear the [path] to allow its unencumbered use” and also claimed that “they performed no work which was not necessary to make the [path] usable.” They also alleged that before “the ‘selective pruning and clearing of vegetation’ which is the subject of the action, the [path] was densely vegetated and impassable on foot; apart from the vegetation, there was a fence constructed by the plaintiffs or their agents which obstructed use of the [path].”

The plaintiffs, on whose land the path was located, sought a declaratory judgment that “the recorded documents purportedly creating the easement were ineffective to create an easement for the benefit of Lots 1, 2, 3, and 4.” They also sought a judgment declaring that the defendants lacked the right to clear the path, “to remove or destroy trees outside the [path], or to remove the tree canopy.” They asked for “injunctive relief preventing [the defendants] from clearing the [path], removing or destroying trees outside the [path], or removing the tree canopy.” The plaintiffs also sought damages based on trespass and “treble damages for removal or destruction of trees under RPAPL 861.” Each of the appearing parties moved for summary judgment.

After reviewing expert and fact affidavits, the court found that “no valid easement exists over the subject” part of the plaintiffs’ property. The court explained that:

For an easement by grant to be effective, the dominant and servient properties must have a common grantor”…. Even assuming, then, that the April 14, 1972 deed validly served to “correct” the July 6, 1971 deed, as the defendants claim…., that deed would not create a valid interest in favor of the owners of Lots 2 and 4. In addition, “[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”….; stated otherwise, a grantor may not reserve an easement other than for his or her benefit. Here, it is evident that ['A'] did not purport to reserve an easement solely for his own benefit but rather for the benefit of all the co-tenant owners of Lots 2 and 4. Consequently, any easement reserved to the owners of Lots 2 and 4 in the plaintiffs’ chain of title was ineffective to create an express easement in their favor. The defendants, in opposition, failed to raise a triable issue of fact. That the grantor may have intended to create such an easement, as they claim, is immaterial…. Nor do any of the various estoppel theories advanced by the defendants avail them. “An easement by estoppel may arise if an owner of land, through specific representations, leads another to reasonably believe a permanent, alienable interest in real property has been created, and if in reliance on such representations, the other makes permanent or valuable improvements on the land”…. Here, the record is devoid of proof of any prior representations by the plaintiffs as to an existing easement.

A witness had testified that when the defendants purchased their lots, they had asked “whether there was a walkway” and were told that “no one had ever used it.” However, there was no evidence that the defendants had relied on such statement to their detriment. Rather, it appeared that the defendants had “relied primarily, if not exclusively, on their belief that a valid easement had been created, as well as statements by town…officials indicating that the clearing of trees would not violate any local ordinances.”

Thus, the court held that the plaintiffs were entitled to a judgment declaring that “the recorded documents purporting to create the ‘pedestrian walk way’…were ineffective to create an easement for the benefit of the owners” of the out lots and “declaring that the defendants have no right to clear, remove or destroy trees from, or remove the tree canopy over that portion of the [path] situated on the plaintiffs’ property, and…enjoining [the defendants] from clearing, removing or destroying trees from, or removing the tree canopy over that portion of the [path] situated on the plaintiffs’ property.”

The court further found that the defendants had trespassed on the plaintiffs’ property. Such finding did not require that the defendants themselves entered the plaintiffs’ land. It is sufficient that a “defendant caused or directed another person to enter….”

The court further explained that under RPAPL 861, “any person who engages in, or causes another to engage in, the cutting, removing, injuring or destroying of the trees of another without the owner’s consent is liable for such conduct.” Therefore, “the plaintiff is entitled to an assessment of the damages arising from both the trespass and the statutory violation.”

Comment: Victor M. Metsch of Smith, Gambrell & Russell, counsel to the plaintiffs, expressed his belief that the court had properly granted summary judgment, based upon “undisputed record documents” and application of the “stranger to the deed” rule.

Christopher Kelley of Twomey, Latham, Shea, Kelley, Dubin & Quartararo, counsel to the defendants stated, inter alia, that “[d]efendants have filed a notice of appeal and intend to appeal. They believe the court misapplied the ‘stranger to the deed rule.’” He further asserted that “[t]he grantor of the deed reserving the 21/2-foot wide easement is one of three co-tenants of the property benefitting from the easement.”

Garson v. Tarmy, 13-61322, NYLJ 1202772608571, at *1 (Sup., SUF, Decided Nov. 2, 2016), Pitts, J.

Landlord-Tenant—Rent Stabilization—Estate Administrator’s Claim to Succeed to Tenancy in Her Individual Capacity

A LANDLORD commenced a summary holdover proceeding to recover possession of the subject apartment, based on allegations that the tenant of record (tenant) had died in July 2015 and her estate had sublet the apartment to the respondent.

The landlord had issued a 10-day notice to cure (notice), stating that the respondent had sublet the apartment on behalf of the tenant’s estate, “to herself in her individual capacity and others.” The notice further asserted that the respondent resided at a different apartment and also had a residence on Long Island. The landlord argued that the respondent was not permitted to occupy the apartment “in her capacity as administrator, because she did not occupy the [apartment] with tenant for two years prior to tenant’s death.”

After the landlord served a petition, the respondent filed an answer, asserting defenses, including “failure to state a cause of action, succession and a claim for attorney fees.” The answer claimed that the respondent is the tenant’s daughter and that she had resided with the tenant in the apartment for a “substantial period” before the tenant had died.

The petitioner had moved for “leave to conduct discovery and for use and occupancy.” The respondent cross-moved for “an order staying discovery, for summary judgment and related relief.”

The court denied the respondent’s motion for summary judgment and for a stay of discovery. The court acknowledged that “there is a line of cases which hold that a landlord may not maintain an illegal subletting proceeding against a tenant’s immediate family member with long-standing connections to the subject premises, even if the primary tenant no longer lives in the subject premises….” However, the court found such cases to be inapplicable where the primary tenant had died.

The court explained that the respondent had a right to possess the apartment “in her capacity as executrix of the tenant’s estate, but not in her individual capacity….” Here, the respondent was admittedly occupying the apartment in her individual capacity. Thus, the salient issue was the respondent’s succession claim.

A prior Appellate Term decision held that “[a]lthough a representative of a deceased tenant’s estate has the right to possession of the demised premises in his capacity as representative until the expiration of the lease, when the representative places himself or herself individually in possession without landlord’s consent, the representative violates a substantial obligation of the tenancy….”

The court noted that there was “no legal authority for respondent’s position that adjudication of the succession claim is premature, where the tenant of record has died….” The court denied the respondent’s cross motion for summary judgment and granted the petitioner’s motion for discovery. The court also directed the respondent to pay use and occupancy.

Westbeth v. Gross, L & T 70844/2016, NYLJ 1202772251521, at *1 (Civ., NY, Decided Nov. 4, 2016), Kraus, J.

Easements—Defendants Removed Vegetation and Cleared a Foot Path Pursuant to an Alleged Easement—Plaintiffs Sued for Trespass and for Treble Damages for Removal and Destruction of Trees Under RPAPL 861 and For a Declaratory Judgment that the Easement is Invalid

THE PLAINTIFFS HAD COMMENCED an action for, inter alia, “a declaration of the parties’ rights and obligations with respect to a ‘pedestrian walk way’” (path), “located in a residential subdivision” which was “presumably intended to provide access to a body of water….” A developer had created a subdivision, consisting of 11 lots. Seven lots were located directly on the water. Four lots (out lots) were separated from the water by a road. At or about the time that the subdivision was developed, “an easement was filed that purported to reserve a five-foot [path] between two of the lots fronting on [the water].” The easement reserved the path “solely for the pedestrian use of owners” of the out lots.

The defendants own the four out lots “and for whose benefit the [path] was presumably created.”

The plaintiffs asserted that when they purchased their lot, “the [path] was an unused, barely-visible path that was protected by a 30-foot high canopy of mature, fully-grown trees.” The plaintiffs claimed that agents of two defendants (defendants) “entered upon and…recklessly cleared the [path], removing trees both within and without its borders, destroying the tree canopy, and creating a condition significantly beyond that required to accommodate a pedestrian walkway.”

The defendants asserted a “right to clear the [path] to allow its unencumbered use” and also claimed that “they performed no work which was not necessary to make the [path] usable.” They also alleged that before “the ‘selective pruning and clearing of vegetation’ which is the subject of the action, the [path] was densely vegetated and impassable on foot; apart from the vegetation, there was a fence constructed by the plaintiffs or their agents which obstructed use of the [path].”

The plaintiffs, on whose land the path was located, sought a declaratory judgment that “the recorded documents purportedly creating the easement were ineffective to create an easement for the benefit of Lots 1, 2, 3, and 4.” They also sought a judgment declaring that the defendants lacked the right to clear the path, “to remove or destroy trees outside the [path], or to remove the tree canopy.” They asked for “injunctive relief preventing [the defendants] from clearing the [path], removing or destroying trees outside the [path], or removing the tree canopy.” The plaintiffs also sought damages based on trespass and “treble damages for removal or destruction of trees under RPAPL 861.” Each of the appearing parties moved for summary judgment.

After reviewing expert and fact affidavits, the court found that “no valid easement exists over the subject” part of the plaintiffs’ property. The court explained that:

For an easement by grant to be effective, the dominant and servient properties must have a common grantor”…. Even assuming, then, that the April 14, 1972 deed validly served to “correct” the July 6, 1971 deed, as the defendants claim…., that deed would not create a valid interest in favor of the owners of Lots 2 and 4. In addition, “[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”….; stated otherwise, a grantor may not reserve an easement other than for his or her benefit. Here, it is evident that ['A'] did not purport to reserve an easement solely for his own benefit but rather for the benefit of all the co-tenant owners of Lots 2 and 4. Consequently, any easement reserved to the owners of Lots 2 and 4 in the plaintiffs’ chain of title was ineffective to create an express easement in their favor. The defendants, in opposition, failed to raise a triable issue of fact. That the grantor may have intended to create such an easement, as they claim, is immaterial…. Nor do any of the various estoppel theories advanced by the defendants avail them. “An easement by estoppel may arise if an owner of land, through specific representations, leads another to reasonably believe a permanent, alienable interest in real property has been created, and if in reliance on such representations, the other makes permanent or valuable improvements on the land”…. Here, the record is devoid of proof of any prior representations by the plaintiffs as to an existing easement.

A witness had testified that when the defendants purchased their lots, they had asked “whether there was a walkway” and were told that “no one had ever used it.” However, there was no evidence that the defendants had relied on such statement to their detriment. Rather, it appeared that the defendants had “relied primarily, if not exclusively, on their belief that a valid easement had been created, as well as statements by town…officials indicating that the clearing of trees would not violate any local ordinances.”

Thus, the court held that the plaintiffs were entitled to a judgment declaring that “the recorded documents purporting to create the ‘pedestrian walk way’…were ineffective to create an easement for the benefit of the owners” of the out lots and “declaring that the defendants have no right to clear, remove or destroy trees from, or remove the tree canopy over that portion of the [path] situated on the plaintiffs’ property, and…enjoining [the defendants] from clearing, removing or destroying trees from, or removing the tree canopy over that portion of the [path] situated on the plaintiffs’ property.”

The court further found that the defendants had trespassed on the plaintiffs’ property. Such finding did not require that the defendants themselves entered the plaintiffs’ land. It is sufficient that a “defendant caused or directed another person to enter….”

The court further explained that under RPAPL 861, “any person who engages in, or causes another to engage in, the cutting, removing, injuring or destroying of the trees of another without the owner’s consent is liable for such conduct.” Therefore, “the plaintiff is entitled to an assessment of the damages arising from both the trespass and the statutory violation.”

Comment: Victor M. Metsch of Smith, Gambrell & Russell , counsel to the plaintiffs, expressed his belief that the court had properly granted summary judgment, based upon “undisputed record documents” and application of the “stranger to the deed” rule.

Christopher Kelley of Twomey, Latham, Shea, Kelley, Dubin & Quartararo, counsel to the defendants stated, inter alia, that “[d]efendants have filed a notice of appeal and intend to appeal. They believe the court misapplied the ‘stranger to the deed rule.’” He further asserted that “[t]he grantor of the deed reserving the 21/2-foot wide easement is one of three co-tenants of the property benefitting from the easement.”

Garson v. Tarmy, 13-61322, NYLJ 1202772608571, at *1 (Sup., SUF, Decided Nov. 2, 2016), Pitts, J.

Landlord-Tenant—Rent Stabilization—Estate Administrator’s Claim to Succeed to Tenancy in Her Individual Capacity

A LANDLORD commenced a summary holdover proceeding to recover possession of the subject apartment, based on allegations that the tenant of record (tenant) had died in July 2015 and her estate had sublet the apartment to the respondent.

The landlord had issued a 10-day notice to cure (notice), stating that the respondent had sublet the apartment on behalf of the tenant’s estate, “to herself in her individual capacity and others.” The notice further asserted that the respondent resided at a different apartment and also had a residence on Long Island. The landlord argued that the respondent was not permitted to occupy the apartment “in her capacity as administrator, because she did not occupy the [apartment] with tenant for two years prior to tenant’s death.”

After the landlord served a petition, the respondent filed an answer, asserting defenses, including “failure to state a cause of action, succession and a claim for attorney fees.” The answer claimed that the respondent is the tenant’s daughter and that she had resided with the tenant in the apartment for a “substantial period” before the tenant had died.

The petitioner had moved for “leave to conduct discovery and for use and occupancy.” The respondent cross-moved for “an order staying discovery, for summary judgment and related relief.”

The court denied the respondent’s motion for summary judgment and for a stay of discovery. The court acknowledged that “there is a line of cases which hold that a landlord may not maintain an illegal subletting proceeding against a tenant’s immediate family member with long-standing connections to the subject premises, even if the primary tenant no longer lives in the subject premises….” However, the court found such cases to be inapplicable where the primary tenant had died.

The court explained that the respondent had a right to possess the apartment “in her capacity as executrix of the tenant’s estate, but not in her individual capacity….” Here, the respondent was admittedly occupying the apartment in her individual capacity. Thus, the salient issue was the respondent’s succession claim.

A prior Appellate Term decision held that “[a]lthough a representative of a deceased tenant’s estate has the right to possession of the demised premises in his capacity as representative until the expiration of the lease, when the representative places himself or herself individually in possession without landlord’s consent, the representative violates a substantial obligation of the tenancy….”

The court noted that there was “no legal authority for respondent’s position that adjudication of the succession claim is premature, where the tenant of record has died….” The court denied the respondent’s cross motion for summary judgment and granted the petitioner’s motion for discovery. The court also directed the respondent to pay use and occupancy.

Westbeth v. Gross, L & T 70844/2016, NYLJ 1202772251521, at *1 (Civ., NY, Decided Nov. 4, 2016), Kraus, J.