The above entitled matter came on before this court pursuant to an Order to Show Cause signed on August 10, 2012 and thereafter an Amended Order to Show Cause was signed on August 24, 2012 regarding property in the Town of West Monroe, County of Oswego, State of New York, which the plaintiff had bought at a tax foreclosure sale. The deed was received and dated October 20, 2010 from the Oswego County Treasurer. The Order to Show Cause and the Amended Order to Show Cause filed by the plaintiff requested this court to enter a temporary restraining order and eventually a preliminary injunction recognizing certain easements to benefit said property bought by the plaintiff as a dominant estate against the servient estate adjacent thereto owned by the defendant Donald Edwards. The defendant Richard Briggs was a tenant of Donald Edwards who lived in the alleged servient estate at all times in issue. The defendant Donald Edwards, filed a cross-motion dated August 22, 2012, prior to serving an answer, which requested the court to dismiss the summons and complaint, infra, pursuant to §3211[a][7] and §3212 of the CPLR. Defendant Edwards maintained that the easement that may have existed against the alleged servient estate owned by Edwards had been extinguished by the doctrine of "merger" and asked the court to declare same.

The parties appeared before the court on the motion return date and at that time, the court set a hearing pursuant to §3211[c] of the CPLR upon the defendant's cross-motion and pursuant to §6301 of the CPLR on plaintiff's request for a preliminary injunction. The hearing date was adjourned and took place on December 4, 2012 wherein witnesses were heard and documentary evidence received. At the end of the hearing, the court reserved decision upon the matter.

The defendant Donald Edwards by two separate deeds from one Sun N. Vincent, dated June 6, 2007, acquired the property now owned by the plaintiff and the property adjacent thereto which the plaintiff maintains is servient to easements of parking and use of a septic system on the defendant's 2.03 acre servient parcel. The plaintiff's property had a building thereupon that used to be known as the "NuMart Store" when plaintiff's predecessor in title, Sun N. Vincent, owned that [*2]parcel. Negotiations took place between the defendant Donald Edwards and Sun N. Vincent which resulted in the transfer of property owned by Sun N. Vincent by two separate deeds to Defendant Edwards. The 2.03 acre parcel contains the property wherein plaintiff maintains there exists an easement for parking to benefit his dominant estate and also maintains there is an above ground sewage system on defendant's property upon which he has an easement to use same. At the time of the deed transfers June 6, 2007 by Vincent to Edwards, the defendant was not represented by an attorney. The grantor, Sun N. Vincent, was represented by David Grasso, Esq. who drew the two deeds between herself and defendant Edwards. The issue in question in the case arose when the property transferred to defendant Edwards by Sun N. Vincent on June 6, 2007 containing the .47 acres upon which the "NuMart Store" was located had easements contained therein to benefit that .47 acres for parking and use of a sewage system on the other parcel Sun N. Vincent transferred by separate deed to defendant Edwards consisting of 2.03 acres. More particularly, the easement contained in the deed of Sun N. Vincent to defendant Edwards of the "NuMart property" now owned by plaintiff recited:

...Also conveying a Permanent Easement for the use of a sewage system and connecting lines located in the northeasterly corner of other lands conveyed to Vincent in Instrument R-2003-008225 for the use of said NuMart Store parcel. Also conveying a Permanent easement for parking over a strip of land 65 feet in width and 200 feet in depth measured from the centerline of New York State Route No. 49 and lying easterly of and adjacent to the easterly line of the above described parcel and its northerly extension...

[Deed, Sun N. Vincent to Donald Edwards dated June 6, 2007, exhibit 2]. Both deeds were recorded on June 7, 2007 by defendant Edwards.

For various reasons, more particularly the state of disrepair of the "NuMart Store", defendant Edwards decided not to pay the taxes thereupon and allowed it to go to tax foreclosure sale. The County of Oswego took title to the premises because of failure to pay taxes and eventually the plaintiff herein purchased same on October 20, 2010 which resulted in him obtaining a deed from the County of Oswego of the "NuMart" property consisting of .47 acres. The plaintiff had researched the title of said premises and ascertained that he would have certain easements pursuant to the previous deed of Sun N. Vincent dated June 6, 2007 to the defendant Edwards, said easements utilized for parking and also the use of the above ground sewage system located on the separate property retained by the defendant Edwards consisting of 2.03 acres. The plaintiff maintains that the defendant Edwards, or the defendant's agents, have not allowed him to use the parking easement or sewage easement and in fact put up no trespassing signs on the property line between the parcel owned by the plaintiff [hereinafter called "dominant estate"] and the parcel owned by the defendant Edwards [hereinafter called "servient estate"].

Defendant Edwards maintains, as a matter of law, that since he took title of the dominant and servient estates the easements contained in the deed conveyed of the "NuMart" property by Sun N. Vincent to him on June 6, 2007 have been extinguished. Furthermore, defendant Edwards maintains that the defendant having taken title by a tax foreclosure sale with no specific reference to the easement in said tax deed that plaintiff therefore has no easement even if one had survived the doctrine of merger. The plaintiff, in a supplemental memorandum of law, has requested the court consider that the he has an "easement by necessity" and that the court find an "implied easement" for the use of the dominant estate over the servient estate to benefit the plaintiff. While those two [*3]specific claims were not contained in the complaint filed by the plaintiff, in the hearing held December 4, 2012, testimony was taken on those issues without objection from the defendant Edwards. Furthermore, the defendant had addressed those issues in a memorandum of law filed by his counsel. Also, pursuant to Vick v. Box Tree Assets, LLC, 21 Misc 3d 1120[A][Sup.Ct., Yates Co., 2008], the court may take up those issues:...While the plaintiff's complaint does not use the words implied easement', it does set forth facts and assertions that address the various elements of that cause of action, including unity of ownership, that the use was established prior to the split [of the parcels], that the easement effects the value of the estate benefitted, and that it is reasonably necessary. The Court concludes that the pleadings gave defendant sufficient notice of plaintiff's claims, within the meaning of CPLR § 3026...

Id. In the further event that in this decision plaintiff's and the defendant Edwards' respective motions are denied and issue has not yet been joined when defendant files his answer, plaintiff may file an amended complaint as of right containing those causes of action therein.

As referenced herein, the court held a hearing December 4, 2012 on plaintiff's motion for a preliminary injunction pursuant to CPLR §6301 allowing use of the easements herein by the plaintiff and pursuant to CPLR §3211[c] regarding defendant Edwards' cross-motion that the claims failed to state a cause of action under CPLR §3211[a][7] and that summary judgment should be granted pursuant to CPLR §3212. The plaintiff and the defendant Edwards both testified in this matter to the facts hereinbefore asserted. The plaintiff specifically testified that when he researched the title of the property to be purchased at the foreclosure sale, he bought same on the premise that the easements over the servient estate were in defendant Edwards' original deed he received to the "NuMart" property and they survived and ran with the "NuMart" property after plaintiff bought same at the foreclosure sale. The defendant inferentially testified that he received both deeds of the dominant and servient estate from Sun N. Vincent and as a matter of law, pursuant to the merger doctrine, the easements contained in the "NuMart" property against the servient estate retained by him were extinguished upon receipt of the deeds. Furthermore, another witness was called by the plaintiff, one Allan LeClair, who testified that he drove by the property for more than eight years and on a couple of occasions he could remember cars being parked on the servient property wherein that easement was claimed.

The defense called various witnesses, one Bruce Ackley, Laurie Guy, and Dwayne Head, who testified they were aware of the previous "NuMart" Store being on the plaintiff's property and that they never saw anyone parking in the parking easement of the servient estate. Defendant Richard Briggs testified that he lived in the building on the servient property since July 2012 and that the sewage system currently serving the servient estate is an approximately 150 foot leach field with two tanks that were marked on the survey received in evidence, exhibit 10 and not the above ground system plaintiff seeks to use.

The plaintiff testified in regard to the allegation of an easement by necessity, that to open a commercial business which he desires of a pizza shop, he would need approximately 28 parking spaces and there was insufficient room on the dominant estate for same and the only way he could operate the premises for that would be to have access to use the parking easement alleged to be on the servient estate. Furthermore, plaintiff testified that because of the limited area of the property he bought of the dominant estate, there was no method in which he could put a septic system in and [*4]more particularly a septic system that would be acceptable as a commercial use. He maintained the only way he could utilize the property for a commercial use, or any other use, was to utilize the raised septic system pursuant to the easement alleged to be upon the servient estate. The defendant further called Mr. Havener who is the Oswego County Public Health engineer. Mr. Havener testified that previously there had a plan approved for the "NuMart" property of the septic system on the servient estate. However, received in evidence was a letter sent by Mr. Havener to a Mr. Richard K. Schoeck, an engineer, as exhibit A that stated this was the third and final time that the proposed plan had been rejected and that there was only one method that the County would consider acceptable for the "NuMart" property, utilizing the raised septic system on the servient estate.

Also received in evidence at the hearing was a letter marked plaintiff's exhibit 9 from the Town of West Monroe Code Enforcement Officer Michael G. Yerdon to the Planning Board of the Town of West Monroe regarding plaintiff's request to operate a pizza shop on the "NuMart" property. The letter demonstrated that the "NuMart" property could not be used as a pizza shop because of lack of parking and that the septic system was located on the neighboring property [servient estate]. The plaintiff's testimony furthermore sought to demonstrate that the property could not be utilized in any manner for a commercial business and therefore he needed the easements of the parking and sewage system on the servient estate out of necessity and since they were contained in defendant Edwards' deed from Sun N. Vincent, that an implied easement of necessity had been demonstrated.

The defendant Edwards maintains that since the dominant estate and servient estate were transferred by Sun N. Vincent to defendant, that the easements contained in the dominant estate were merged by operation of law and therefore extinguished. In the case of Parsons v. Johnson, 68 NY 62 [1877], the court found upon merger of the easement in one owner that "...Such an easement one cannot have in land of which he owns the fee...It never had existed apart from the land as an easement appurtenant thereto.." [Id. at p. 65]. In the case of Simone v. Heidelberg, 9 NY3d 177 [2007], when a dominant and servient estate came into common ownership with a party, the court stated "...It is undisputed that the easement was extinguished when the parcels came under common ownership [citations omitted]..." Id. at 181. The court further stated:

...Thus, when the Accardos subsequently conveyed the purported dominant estate to the Corrados, the right to burden the previously conveyed parcel no longer existed. They thus lacked the authority to recreate the driveway easement over the servient estate at the time they transferred the dominant estate. It is well settled that an easement can be created only by one who has title to, or an estate in, the servient tenement'.

Id. at 182. In Seebaugh v. Borruso, 220 AD2d 573 [2nd Dept., 1995], the court stated " ...It is fundamental that where the title in fee to both the dominant and servient tenements become vested in one person, an easement is extinguished [by merger]'[citations omitted]" Id. at 573. In Cowan v. Carneval, 300 AD2d 893 [3rd Dept., 2002], the court stated:

...Notably, the general rule is that a person cannot have an easement in his or her own land,'[citations omitted] and, therefore, when both the dominant and servient estates are entirely owned by the same person, the easement is extinguished by the doctrine of merger [citations omitted].

[*5]Id. at 894. Therefore, the easements in the June 6, 2007 grant from Sun N. Vincent to defendant Edwards in the dominant estate, the court finds as a matter law, were extinguished by "merger"..

B.Tax Foreclosure Sale Extinguishes Easement on Servient Estate

The defendant Edwards claims in his affidavit dated August 21, 2012, that since the plaintiff took a tax foreclosure deed from the County of Oswego "...there was no preservation or intent in that Deed to extend or renew an easement..." [p.5]. In the case of Tax Lien Co. of NY v. Schultze, 213 NY 9 [1914], the court said:...on the foreclosure of a tax lien and a sale of the premises pursuant to sections 1035-1039 of the Greater New York charter, private easements of light, air and access of adjoining owners over land sold are not extinguished...

Id. Furthermore, in the case of Halpin et al v. Poushter, 59 N.Y.S.2d 338 [Sup.Ct Onondaga Co, 1945] the court stated regarding a tax foreclosure sale wherein the servient estate had restrictive covenants of an easement thereupon:...restrictive covenants create an easement [citations omitted]...A tax foreclosure cannot be used to cut off restrictive covenants because the latter are easements [citations omitted]...This particular easement, the restrictive covenant as to set-back, existed for a long time prior to the levying of the tax, foreclosure of which is the source of defendant's title, and was, therefore, not cut off by the foreclosure...

Id. at 341. In the case of Wilkinson v. Nassau Shores, 1 Misc 2d 917 [Sup.Ct., Nassau Co., 1949], aff'd 278 A.D. 9 70 [2nd Dept., 1951], aff'd 304 NY 614 [1952], the court stated:

...the second point to be determined is whether the easement of the defendants was cut off by the tax sale. It is well settled that an easement acquired prior to a tax lien is not subject thereto, nor does a foreclosure of a tax lien or a deed from the county treasurer cut off the easement.

Id. at 924. Therefore the fact that the property was acquired by plaintiff at a tax foreclosure sale does not cut off an easements which may benefit the dominant estate against the servient estate.

C.Easement Not Specifically Written in Tax Foreclosure Deed of Plaintiff — Appurtenance

1.Appurtenance

The defendant on page five of his affidavit of August 21, 2012 maintains that "...there was no preservation or intent in that Deed [tax foreclosure deed] to extend or renew an easement..." Effectively, what the defendant maintains is that since the tax foreclosure deed to the plaintiff did not specifically relate the easement that had been in defendant Edwards' prior deed from Sun N. Vincent of the dominant estate, that there is no intent of the County to transfer that easement to the plaintiff. However, the tax deed received by the plaintiff on October 20, 2010 received in evidence as exhibit 1, states:

NOW, THEREFORE...[the County] does hereby grant release and convey unto the said party off the second part [plaintiff]...together with the appurtenances and all the estate, rights and interest of the party of the first part in and to the said premises, said tract, piece or parcel to be located and laid out...

[exhibit 1, pp 1-2]. The County tax foreclosure deed to the plaintiff therefore had what is commonly known as an "appurtenance clause". When an appurtenance clause is contained in a deed, any easements even though not specifically outlined in the deed from grantor to grantee are passed to the grantee. In the case of Fischer v. Anger, 283 AD2d 864 [3rd Dept., 2001], the court stated:

...Finally, with regard to defendant's entitlement to use the 40-foot easement, the record reveals, as noted previously, that there is no express mention of such easement in the conveyances to Hudelmaier or defendant. When Wegman's heirs conveyed Hudelmaier II to Hudelmaier in 1972, [*6]however, such conveyance was TOGETHER with the appurtenances and all the estate and rights of the parties of the first part in and to said premises.' An appurtenances is a right-of-way that is necessary to give usable enjoyment to the conveyed premises [citations omitted]...Where, as here, title is conveyed subject to appurtenances, an easement appurtenant is conveyed to the grantee, even in the absence of express language regarding such easement [emphasis added].

Id. at 868. Furthermore, in the case of Sedor v. Wolicki, 206 AD2d 854 [4th Dept., 1994], the court stated:

...Construing the deed as a whole, particularly in light of the presence in the deed of a general appurtenance clause, which passes an easement originally created by grant to the grantee of the dominant estate even where the deed omits express reference to the easement [citations omitted], we conclude that the Wolfangers and Henderson, as grantors, conveyed all of their right, title and interest in Lot 1, including the estate in the 15-foot right-of-way, to their grantees.

Id. at 855. Also in the case of Franklin Park Plaza, LLC v. V & J National Enterprises, LLC, 57 AD3d 1450 [4th Dept., 2008], the court stated:

...We note in any event that the 1978 deed contained a general appurtenance clause that is sufficient to convey the easement to a subsequent purchaser of the dominant estate [citations omitted], and that the easement is enforceable against plaintiff because it appears in plaintiff's direct chain of title, thus establishing that plaintiff had actual notice of it...

Id. at 1452.

The defendant cites in support of the merger doctrine, supra, the case of Seebaugh. Seebaugh also states in regard to the transfer of an easement by an appurtenance clause that:

...Insofar as every deed in the dominant chain of title contained a general appurtenance clause, the easement passed to all subsequent purchasers of the dominant estate, including the defendants herein...

Id. at 573. Therefore, the fact that the easement contained originally in the Sun N. Vincent deed to Donald Edwards of the dominant estate June 6, 2007 is not specifically written in the tax foreclosure deed to the plaintiff which he received October 20, 2010, is not determinative that there could be no transfer of the easements. By the doctrine of the appurtenance clause, those easements having been written in the Sun N. Vincent deed to Donald Edwards deed of the dominant estate and filed in the Oswego County Clerk's Office are in the chain of title of the plaintiff from which he received the tax foreclosure deed. Furthermore, the tax foreclosure deed had the "appurtenance" clause contained therein. However, in this particular case, plaintiff cannot prevail upon the "appurtenance clause"..

2.Merger/Extinguishment — Recreation of Easement

The defendant's claim that the easements for the dominant estate have been extinguished and not recreated through the tax foreclosure deed of plaintiff has merit. Parsons, supra, specifically states:

...Where there has been an easement proper with a dominant and servient tenement, and the ownership of such tenements has been unified. In such a case when the ownership is again severed by a conveyance of the dominant tenement, the way will not pass by the general word appurtenances' merely, but there must be particular or general words indicating an intention to grant the way [citations omitted].

Id. at pp 65-66. Furthermore, in the case of Swezey v. Berry, 143 Misc. 372 [Sup.Ct., Greene Co., 1932] in a "merger" case the court said citing Parsons, supra: [*7]

...Upon unity of title such an easement as this would have been extinguished, and would not pass upon severance of the title again, unless the language of the conveyance was sufficient to indicate an intent to grant it, in other words, to create it de novo. Such an intent cannot be predicated upon the mere use of the word appurtenances' in the deed of conveyance...The conveyance of severance in this case, that is, from Gorman to Moore, does not indicate that any such right of way was given. There are reservations as to easements attaching to the property conveyed, but nowhere in the conveyance is there language to indicate that grant of an easement attaching to the property retained. The only exception to this rule applies to rights of way by necessity [emphasis added]...

Id. at 375. Also, in the case of Snyder v. County of Monroe, 2 Misc 2d 946 [Sup.Ct., Monroe Co., 1965]; aff'd 6 AD2d 854 [4th Dept., 1958] the court said regarding the merger of dominant and servient estates:

...Any easement which had existed previous to that time [merger] was wiped out upon the subsequent uniting of the title in one person and ordinarily would not be renewed unless at the time of the subsequent severance, language was used in the conveyance which made plain an intent to recreate the easement de novo [citing Swezey, supra]...

Id. at 954. The Court of Appeals has stated in Simone, supra, that:

...Plaintiffs contend that an easement may be re-created in a subsequent conveyance only if there is language evincing the encumbrance in a deed recorded in the servient estate's chain of title...We agree with plaintiff...

Id. at 181.

Therefore, since the merger of the dominant and servient estates in Edwards occurred, the easements were extinguished. The easements could only be recreated if there were specific words in plaintiff's deed demonstrating the easements continued. The County tax foreclosure deed does not contain such language nor could the County have reimposed those easements on the defendant's servient estate. Therefore the court finds there are no express easements over defendant's property for the benefit of plaintiff.

D.Failure of Defendant Edwards to Notice Easements Contained in Vincent Deed of the Dominant Estate to Edwards of June 6, 2007.

The defendant Edwards opines in his affidavit that he was not represented by an attorney at the sale of the two parcels on June 6, 2007. Furthermore, he maintains that he was not aware of the easements contained in the dominant estate grant to him from Sun N. Vincent. In fact, defendant Edwards states in paragraph 7 of his affidavit that the first time he realized there were easements in that grant was when he received the letter from an attorney on behalf of the plaintiff. The defendant Edwards maintains therefore that he is not bound by the easements in any respect because of the doctrine of merger, supra, and that there cannot be an implied easement of necessity , infra. In regard to the intent of the parties:

...an implied easement arises when two adjacent parcels of land were previously held in common title and an intent can be ascertained from the circumstances surrounding the land's previous use and the conveyance [emphasis added] that the holder of one parcel is to have a right to pass through the other parcel or to make some other such other limited use of it [citations omitted].

Ryerson Tower, Inc. v. St. James Towers, Inc., 131 AD2d 744 [2nd Dept., 1987]. Certainly it can be ascertained from the fact that the easements appear in the June 6, 2007 deed of the dominant estate from Sun N. Vincent to defendant Edwards that the grantor intended there be an easement of record, [*8]if not implied, by placing those easements specifically in the deed conveyed to the defendant. More particularly if there was no intent to have that easements applied for the benefit of the dominant estate against the servient estate, then it need not have been in that deed. Had there been no intent to have those easements survive the transfers of the properties of the two parcels, same could have been effected by one deed with two descriptions therein without any easements. There would be no purpose to put those easements in the dominant parcel transferred to defendant Edwards unless the intent was to have same survive or at least demonstrate the intent of the parties to create an implied easement even though ownership of both parcels came to the defendant Edwards. Edwards maintains he didn't read the deed and didn't know that the easements were in the dominant estate transferred to him by Sun N. Vincent. However the fact that defendant did not read the deed and was not aware of it, is unpersuasive. The defendant Edwards filed both deeds in the Oswego County Clerk's Office and:

...The recording of a deed is constructive notice to everyone from the time that its record [citations omitted]. The object of recording is to give notice to all the world that the title has past from the vendor to the vendee [citations omitted]. It was the duty of the defendants Hines to make or cause to be made an investigation and examination of their title and the presumption is that they did. A proper search of title could not have been made without the discovery of the right of way deed from McDonald to the Klinkerts and which affected their title [citations omitted].

Polhamus v. Hines et al, 128 Misc. 299 [Sup.Ct. Onondaga Co., 1926]. Furthermore. "...It was the duty of the defendants Hines to make or cause to be made an investigation and examination of their title and the presumption is that they did..." Id. at 305. Also, in the case of Holden, Jr. v. Palitz, 2 Misc 2d 433 [Sup.Ct.Weschester Co., 1956], the court stated:

...It has long been established in this State that a purchaser who accepts a deed which recognizes an easement over the realty is estopped by such acceptance from denying the existence of such easement...

Id. at 308.

...A recital of a fact in a deed is, as against the grantee in such deed and all persons claiming under him through that deed, evidence of the fact recited therein; so as to save the necessity of further proof thereof by the grantor or those who claim under him. The acceptance of the deed operates as an estoppel upon the grantee and those who claim under him as against the grantor and his assigns or representative.

Torrey & Gilbert v. The Bank of Orleans & Clark, 4 NY Ch.Ann 853 [1842]; aff'd 7 Hill 260 [1843].

...Although the plaintiff is not shown to have had express notice of this restriction [in a deed], yet as the conveyances under which he hold refer to deeds in which it is contained, and these deeds are recorded, he must be taken to have had notice of the existence of such a restriction in the original deeds, and of his consequences

Gibert v. Peteler, 38 Barb. 488 [Sup.Ct.N.Y.Co.,1862].

In the case of Ranney v. McMullen, 5 Abb.N.Cas. 246 [Sup.Ct. N.Y.Co, 1878], a clause was inserted in a deed transferred to the grantee wherein the grantee assumed the payment of a mortgage on the premises. There was no fraud or mistake by the grantor's attorney who inserted the clause. The court stated:

...the clause in question was not inserted in the deed by mistake, or otherwise than for the purpose [*9]and with the intent of carrying out the express understanding and agreement between Ranney and Davis. If it was intentionally inserted by Davis, and there was no mistake on his part in regard to it, it is wholly immaterial whether David McMullen overlooked it or not. No fraud or deception was practiced upon him. He was personally present when the deed was delivered...He was bound to know and was legally chargeable with full notice of the contents of the instrument.

Id. at 259. In the case of Albany City Savings Institution v. Burdick, 87 NY 40 [1881], the court stated:

...Indeed, in most of the cases to be found in the books, where relief has been sought against written instruments on the ground of fraud and mistake, the complaining parties were chargeable with the same kind of negligence which exists in this case, to wit, the omission to read or understand the contents of the instruments executed or accepted. It has certainly never been announced as the law in this State that the mere omission to read or know the contents of a written instrument should bar any relief by way of a reformation of the instrument on account of mistake or fraud. It is the general rule that where a written instrument fails to conform to the agreement between the parties in consequence of the mutual mistake [emphasis added] of the parties however induced, or the mistake of one party and fraud of the other, a court will reform the instrument so as to make it conform to the actual agreement between the parties.

Id. at 485. Certainly in the instant case, there is no mutual mistake between Sun N. Vincent and defendant Edwards. Sun N. Vincent had her attorney specifically write in the dominant estate's grant to Edwards, the easements in question. Therefore, the failure of the defendant Edwards to read same does not absolve him of the knowledge thereof.

E.Implied Easement of Necessity

The plaintiff maintains that even if there is not a grant of an easement pursuant to the doctrine of merger, that there is an implied easement over the servient estate. In order for an implied easement to be imposed upon a servient estate, the party asserting same must establish:

(1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficially enjoyment of the estate conveyed.

Monte v. DiMarco, 192 AD2d 1111 [4th Dept., 1993]; Lv.toApp. Denied 82 NY2d 653.

The testimony of the parties at the hearing hereof and the documentary evidence received demonstrates the first element that there was a unity of title and subsequent severance thereof pursuant to the tax foreclosure deed issued to the plaintiff from the County of Oswego. In regard to the second element, during the period of unity of title, the owner established a use in which one part of the land was subordinated to the other. The credible testimony indicates that historically a NuMart store had been operated on the premises and there was no other testimony other than the sewage system located on the servient estate was in use for the NuMart store. In fact, the statement of the defendant Edwards in his affidavit, supra, demonstrated he intended to use the sewage system and the parking to operate the business he intended to open. This demonstrates at least prima facie establishment of the second element that one part of land was to be subordinated to the other.

In regard to the third element that the establishment by the owner or predecessor for the use [*10]of the commercial building in order to utilize the sewage treatment system and the parking, the obvious inference is that someone paid to have the sewage treatment system placed on the servient estate. There was no testimony other than that was going to be utilized for the NuMart store. Furthermore, the placement of the above ground sewage treatment system is obvious and open in that anyone could ascertain that it was there and could have determined it was to be permanent.

In regard to the fourth element that the use of the parking and the sewage treatment system affect the value of the dominant estate and reasonable beneficial enjoyment, the testimony demonstrates, that unless the plaintiff was allowed to utilize those easements, he cannot operate a commercial business on the premises or in fact, cannot have a sewage treatment system anywhere on his property.

The plaintiff maintains that should the court not find an existing easement by grant, that he is entitled to utilize the easements for parking and septic system by the doctrine of implied easement of necessity. The testimony at the hearing by the plaintiff demonstrates that he intended to use the premises as a pizza shop. He further testified the he needs 28 parking places which he cannot have on the dominant estate. Furthermore, through his testimony, the plaintiff has indicated that he cannot put a septic system on his property because his property is near a creek and any septic system has to be set back a certain distance and that the only manner in which he can commercially use the premises is though the necessity of having the parking easement and the sewage system on the servient estate.

The affidavit of the defendant Edwards dated August 21, 2012, in paragraph four thereof states:

...I had thought that I would improve the Numart store [dominant estate] and perhaps put a food store/laundry business there. Ms. Vincent and I had discussed a purchase price of $130,000.00 for the Numart store. I learned that the store had a partially installed septic system in the northeast corner of another parcel of property [servient estate] she had purchased in 2005 from Munger. I was reluctant to purchase the Numart store without parking and the septic system being on the property. Eventually, there was a discussion of an easement. Ultimately, I did not want an easement and Ms. Vincent offered to sell me both parcels for the same price...At the time of the purchase, there were five moss filtering tanks in the northeast corner of the property [the septic system referred to hereinabove on the servient estate]. There was pumping tank behind the Numart store building, which is on my current property [servient estate] and not on the Numart property. In 2007, my family members and I started working on the building to renovate it for my intended use. It was not until late in the winter that we realized that the septic system was not even hooked up. Sewage backed up into the building when used...

The credible evidence demonstrates that in fact, the defendant intended to use for the Numart property [dominant estate], the sewage system easement on the servient estate as well as the parking easement on the servient estate. Furthermore, the affidavit of the defendant Edwards maintains that in fact he attempted to use the sewage system which is located on the servient estate.

In order to establish an easement by necessity, the party seeking same must show that the servient estate wherein the easement is located, is physically apparent or reasonably could be apparent. In fact, the defendant Edwards had actual knowledge for the purposes of use of the sewage treatment system on the servient estate and the use of the parking on the servient estate as he intended to use them for operation of a commercial store when he first bought the "Numart" [*11]property. Furthermore, he is bound to know the easement that was in the deed from Sun N. Vincent to him on June 6, 2007 pursuant to having constructive knowledge thereof, supra. The credible testimony of the plaintiff is that he cannot utilize the premises as a commercial building unless and until he has parking on the easement of the servient estate, as well as the possibility to use th sewage treatment system on the servient estate. The plaintiff maintains the if he cannot utilize those easements, he cannot have the reasonable use of the estate for the purposes for which he bought it, as well as parenthetically what the defendant Edwards originally bought it for [see Ryerson Tower, Inc. v. St. James Towers, Inc., 131 AD2d 744 [2nd Dept., 1987]; Buck v. Allied Chem. Corp., 77 AD2d 782 [4th Dept., 1980]; Zentner v. Fiorentino, 52 AD2d. 1036 [4th Dept., 1976]. Therefore, pursuant to the motion of the defendant Edwards to dismiss on the grounds of CPLR §3211[a][7], failure to state a cause of action, the court finds the plaintiff has stated a cause of action for an implied easement of necessity.

The court is not determining those elements have been established but only pursuant to the limited context of the motions before it that the plaintiff has demonstrated a prima facie case and stated a cause of action for the determination of whether implied easements of necessity exist over defendant's property [see Billes, v. Eddy, 236 AD2d 853 [4th Dept., 1997]; Grotenstein v. Kaplan, 90 Misc. 403 [2nd Dept., 1915]].

In the case of Lathrop v. Lytle, 84 Misc. 161 [Sup.Ct.Erie Co., 1913] two parcels had been joined by purchase from the same grantor. The court stated relative to the easement being extinguished over the servient estate:

...Even if the existence of such easement were proved, however, the purchase of the Bragg farm in 1876 would have extinguished any such right by a merger of the titles. The second contention of the plaintiff is a more serious one. On the principle that a vendor will not be allowed to derogate from his grant, all those visible easements which are necessary to the enjoyment of the property conveyed will be deemed to pass by implication... Where the owner of two parcels of land conveys one [in this case tax foreclosure sale] by an absolute and unqualified deed, we thing that an easement will be implied, in favor of the land retained by the grantor and against the land conveyed to his grantee, only in case the burden is apparent, continuous, and strictly necessary for the enjoyment of the former'...

Id. at 164-165.

The credible evidence and testimony, infra, demonstrates the plaintiff has shown a prima facie case that implied easements of necessity may be demonstrated by the plaintiff in that the dominant estate had the language of the easements in same which defendant Edwards is bound to know, as well as defendant Edwards' affidavit and testimony regarding his intended use of the easements of parking and the septic system on the servient estate.

The requested relief by the plaintiff is that of granting a preliminary injunction for use of the aforesaid easements against the servient estate. In order for a preliminary injunction to be granted, three elements must be demonstrated: (1) a likelihood of success on the merits of the action; (2) the danger of irreparable injury in the absence of preliminary injunctive relief; and (3) a balance of equities in favor of the moving party [see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839 [2005]].

In regard to this case, the plaintiff fails in those elements in at least three respects. One, the [*12]court finds based on its determination that the easements had been extinguished by operation of law that there are certainly issues of fact relative to whether implied easements of necessity exist, supra, that the court cannot determine at this juncture that the plaintiff has a likelihood of succeeding on the merits of the case. Furthermore, the property purchased by the plaintiff on October 20, 2010 was not in operation as a store or a commercial venture. The plaintiff has attempted to have the sewage treatment system reviewed and the letter in evidence from Mr. Havener demonstrates that at this time, there will be no ability to use same. Also, up to the present time the plaintiff has not suffered any economic loss in that when he purchased the premises, it was inoperable as a commercial store and currently remains in that state. The court further finds in a balancing of the equities, that same does not favor the court granting a preliminary injunction at this juncture.

The defendant moves to dismiss plaintiff's complaint on a variety of reasons but more particularly fashioned that there does not exist causes of action under §3211[a][7] of the CPLR. The court has held a hearing thereupon pursuant to §§3211[c] and 3212[c] of the CPLR. The extent of the hearing was narrow in scope and was to only determine whether the plaintiff has stated viable causes of action in his complaint. The burden of course is on the defendant to come forward to demonstrate that no implied easements of necessity can exist on behalf of the plaintiff. The court must accept as true on a summary judgment motion pursuant to §3212 of the CPLR, the opposing parties evidence and take all reasonable inferences for the benefit of the opposing party [Weiss v. Garfield, 21 AD2d 156 [3rd Dept., 1964]]. Any conflicts between the evidence submitted by the plaintiff must be resolved against the movant in respect to material issues of fact. The court, in a summary judgment motion is engaged in issue finding and not issue determination [Silman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]].

As the court has stated in its decision and conclusions of law, the defendant Edwards has plead plausible claims for implied easements of necessity. Also, the hearing ordered by this court upon defendant's motion was scheduled with no discovery having been completed. Plaintiff has not had the ability in the short time frame to ascertain other circumstances or facts that may support his petition. Pursuant to CPLR §3212[f] when facts are unavailable to the opposing party that may exist, the court may deny the motion. The court finds the plaintiff should be allowed appropriate discovery to develop, if possible, if other evidence may support his claim of implied easements of necessity. Therefore, the court DENIES defendant's motion to dismiss plaintiff's claims of implied easements of necessity.

Insofar as the plaintiff's first cause of action may be construed for determination by the court that a valid easement, as written, in the dominant estate exists and plaintiff seeks a declaration same is a viable easement, the court herewith GRANTS the defendant's motion to dismiss the first cause of action in that the said written easement in the dominant estate's deed has been extinguished by the doctrine of merger and not recreated. The second cause of action alleged in plaintiff's complaint is for a permanent injunction. The court has denied the preliminary injunction herein but this does not mean that plaintiff will not be able to prove that he should obtain a permanent injunction should he be successful in the cause of action for implied easements of necessity. Therefore, the motion to dismiss the second cause of action is likewise DENIED. The third cause of action in plaintiff's complaint is for money damages which necessarily is properly plead if and when plaintiff can prove that implied easements of necessity exist. The court therefore DENIES defendant's motion to [*13]dismiss the third cause of action

NOW, THEREFORE, IT IS

ORDERED, that plaintiff's motion for a preliminary injunction is herewith DENIED; and it is further

ORDERED, that the temporary retraining order previously granted to plaintiff is herewith vacated; and it is

ORDERED, that the defendant Edwards' motion to dismiss plaintiff's second cause of action for a permanent injunction and third cause of action for money damages is herewith DENIED; and it is further

ORDERED, that the plaintiff will be allowed to amend his complaint within 20 days from the service of this decision and order upon him to insert a cause of action for implied easements of necessity, together with the second and third causes of action as originally plead.

ENTER,

_______________________________________

Hon. James W. McCarthy

Supreme Court Justice

Dated: January 11, 2013

at Oswego, New York.

The papers upon which this court rendered its decision and order are:

1.Order to Show Cause with attachments signed by the court August 10, 2012;

2.Affidavit of Teddy M. Knafelc sworn to August 9, 2012;

3.Amended Order to Show Cause with attachments signed by the court August 24, 2012;

4.Cross-Notice of Motion dated August 22, 2012 filed by the defendant together with the affidavit of Donald G. Edwards sworn to August 21, 2012 attached thereto with attachments;

5.Affidavit of Lauren H. Seiter, Esq., affirmed August 28, 2012.