Was Easement Extinguished/Abandoned After Adjoining Owner Built a Brick Wall?
In 1949, certain real property in Brooklyn, known as the Marte Property, was converted to an automobile repair shop. A new certificate of occupancy was issued based upon a letter of approval by the New York City Fire Department dated March 15, 1949. The new facility included a rear door, leading to an easement of record over the adjoining real property, known as the Boerum property, for ingress and egress.
On February 17, 1987, the Marte property was conveyed to Emenegilda Marte. Shortly thereafter, the owner of the Boerum property erected a brick wall, topped by a metal fence, which blocked the easement. However, the owner of the Boerum property provided access in an area adjacent to the easement through a gate and gave the occupiers of the Marte property a key to that gate. The automobile repair shop was altered by removing a 10-foot-wide door which provided access to the easement and replacing the door with a narrower door which served as a fire exit.
Boerum Johnson, LLC purchased the Boerum property in October 2018. In July 2019, Boerum commenced an action– pursuant to RPAPL Article 15 to quiet title and for a judgment declaring there was no easement over its property– against Emenegilda Marte, Gilbert Marte, Jr., and G & S Auto Repair Corp. Boerum moved for summary judgment on the first cause of action, to quiet title, and the fourth cause of action, for a judgment declaring that the easement was extinguished by abandonment. And the Martes/G&S cross-moved for summary judgment dismissing the complaint and declaring that Emenegilda Marte had an easement over the Boerum property. Supreme Court granted Boerum’s motion and denied the Martes/G&S cross-motion, determining that (1) the easement was extinguished by abandonment and (2) Emenegilda Marte did not have an easement of necessity based upon the fire exit because the Marte property bordered a public street. The Martes/G&S appealed.
In order to prove an abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement. Here, the evidence of abandonment of the easement included the fact that the easement of record was obstructed with a wall, and thereafter, the rear exit to the facility on the Marte property was altered.
An easement by prescription was not established over the new route, since the use of the alternative route was used with the permission of the owner of the Boerum parcel, who provided the Martes/G&S with a key to the gate. Nor did the circumstances give rise to an easement by necessity, since the Marte property had access to a public street and could modify the facility to provide an additional fire exit, if such a modification was required.
Accordingly, Boerum established entitlement to judgment as a matter of law, and the Martes/G&S failed to raise a triable issue of fact in opposition. So the appellate court affirmed the order and judgment of Supreme Court.