PLAINTIFFS, THE NEW YORK STATE Dormitory Authority (DASNY) and City University of New York (CUNY), moved for a preliminary injunction to enjoin the defendants, a Roman Catholic Church (church) and a developer, from further construction along a property line between real property owned by the plaintiffs and the adjacent real property owned by the defendants. The defendants cross-moved, inter alia, to dismiss the complaint pursuant to CPLR §§3211(a)(7) and 6514.

This action was commenced pursuant to Real Property Actions and Proceedings Law (RPAPL) Article 15. DASNY is the fee owner of certain real property (school property). CUNY occupies a school on the DASNY property. The church owns adjacent property and had leased its property to the developer (development property). Title to the subject properties was derived from one common owner, a preparatory school (prep school). On June 30, 1927, the prep school had conveyed property to the church pursuant to a deed which contained “an express covenant that the property was conveyed free from encumbrances.” On July 20, 1971, the prep school had conveyed property to DASNY. No express easements had been recorded against the “development property” in the 1971 deed.

The two properties had a common north-south boundary (property line). There is a four-story building on the school property (school building), which has existed since the development property had been conveyed from the prep school to the church in 1927. A wall of the school building abuts the property line between school property and the development property. “There are windows along the… wall of the school building and a cornice on the west wall of the school building that extends approximately one foot, nine and one-half inches over the property line onto the development property. There is also a door along the…wall of the school building that opens onto the development property.” The defendants are constructing a new building on the development property. “The new building abuts the property line.”

The plaintiffs assert that the defendants’ new building project will obstruct “the use of an emergency egress door in the school building that opens onto the property line and the adjoining development property; will demolish the cornice of the school building; and will obstruct the windows and air vents on the wall of the school building which impairs plaintiffs’ enjoyment of light and air.” The plaintiffs also claim that the new building will “obstruct the right of way enjoyed by plaintiffs over [a] portion of the public property.”

The plaintiffs sought a declaratory judgment that the school property had an “easement by implication” over that part of the development property that is necessary to permit the continued existence of the cornice; “an easement by implication over so much of the development property as to permit the continued use of the egress door, and…’an easement by implication over so much of the development property as necessary to continue to enjoy light and air from the school windows.’” The plaintiffs also sought a declaratory judgment that the school property had an easement by implication over part of the development property so as to permit the continued use of the right of way. They also sought to prohibit the defendants from blocking the egress door. The plaintiffs had referred to the door as an “emergency egress door” or “egress door.” The defendants, however, had referred to such door as a “side door.”

The plaintiffs argued, inter alia, that the egress door will be obstructed and they will be unable to use the door as an emergency fire exit for a day care center in the school building, the cornice on the school building will be damaged, school windows will be obstructed, resulting in loss of light and air and access to the right of way will be impeded. The plaintiffs claimed that the balance of equities weighed in their favor because the defendants commenced construction with knowledge of the subject claims and of a notice of pendency.

The defendants argued that there was no evidence that the alleged easements “existed prior to the separation of the lots on June 30, 1927,” “there is no showing that the use of said easements were so obvious to show it was intended to be permanent or that the use of said easements was necessary for the beneficial use of plaintiffs’ property” and there was no evidence as to when the side door facing defendants property had been built. They also argued that the plaintiffs had failed to show that money damages would not “adequately compensate them under the facts of this case.”

The court found that the plaintiffs failed to demonstrate a likelihood of success on the merits. “In order to establish an easement by implication based upon pre-existing use, three elements must be present: (1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land retained. An easement by implication must be established by clear and convincing evidence of each element…and each element must be present at the time the unitary parcel, or part of it, is sold….”

The court found that the plaintiffs failed to submit “dispositive evidence that the implied easements over defendants’ property existed prior to the separation of the lots on June 30, 1927, and had so long continued before that period and had been so obvious to be permanent, or that the use of said easements was necessary for the beneficial use of plaintiffs’ property.” The court further found that an affidavit submitted by the plaintiffs was “conclusory in nature,” and had “little probative value” and that the unverified complaint was “equally lacking in probative value,” since it was unverified and “based largely on information and belief without reference to the source of information.”

The court explained that the “best evidence of any encumbrances on the school property would be the 1927 deed from [the prep school] to [the church].” However, that deed expressly conveyed the property “free from encumbrances.” Although the 1971 Deed from the prep school to DASNY expressly permitted continuance of an existing encroachment upon DASNY’s property for the benefit of the adjoining property owned by the church, the deed was “silent as to any easement of encumbrance for the benefit of DASNY upon the development property.” Thus, the court found that the plaintiffs’ failed to demonstrate “a likelihood of success on the merits as to a grant of an easement by implication as to the cornice, school windows and right of way.”

The plaintiffs had also failed to demonstrate a likelihood of success on the merits, that “the door located on the west wall of the school building was, in fact, a fire exit for the child care center.” Although the plaintiffs “self-characterized the door… as an ‘emergency egress door,’ they made no evidentiary showing ‘as to when it was built or its intended purpose.’” A developer executive’s affidavit stated that he had been given a tour of the property and he had not seen an “exit” sign on the door in the day care center. Rather, he saw evacuation instructions stating that the door was “not an exit” and “directing students not to use that door in case of an emergency.”

Additionally, documentary evidence, i.e., floor plans for the childcare center showed “three other exits at the school building” which provided “alternative means of egress and ingress other than the egress door.” Although the floor plan clearly showed that the west side of the school building abuts the property line “the floor plans did not show the door located on the west wall of the school building as an exit.”

Moreover, the court held that the plaintiffs’ argument that an easement by implication exists as to the cornice and school windows along the west wall of the school building because they provide light and air, was “without merit, since it is settled in New York that easements for light, air and view cannot be acquired by implication, but must be expressly granted….” The 1927 deed which conveyed the property to DASNY, embodied “no express grant to impose a servitude on defendants’ property preserving light and air.” The court concluded that the plaintiffs failed to demonstrate a likelihood of success on the merits and denied the plaintiffs’ motion in its entirety.

The court granted the defendants’ cross motion to dismiss to the extent that the plaintiffs claim for a declaratory judgment seeking an easement by implication for the cornice and school windows along the west wall of the school was dismissed. In all other respects, the cross motion was denied. The court explained that “according to plaintiffs every possible and favorable inference of the facts contained in [their supporting affidavit],” the plaintiffs had set forth a cause of action for an “easement by implication for the door on the westerly wall of the school building and the right of way.”

Dormitory Authority of the State of New York v. Roman Catholic Church of Saint Ignatius, Sup. Ct., Kings Co., Index No. 504285/2015, King, J.