United States: Easements By Implication—School's Motion To Enjoin Adjacent Development Fails

SGR's Sean A. Altschul and Victor M. Metsch of our New York Real Estate and Litigation Practice Groups represented the Developer in the first case reported in the article below published in the New York Law Journal.

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 buildingwhich 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 "[a]ccording 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.

Foreclosures—Although RPAPL 1301 Bars Lenders for Pursuing a Foreclosure Action and a Suit On the Note at the Same Time, It is Inapplicable Where the Mortgaged Property is Located Outside New York—However, the Court Followed the 1301(3) Approach and Stayed a Lender From Simultaneously Proceeding With an Action on a Note and Guaranty, While Pursuing a New Jersey Foreclosure Action

THIS IS AN ACTION by the plaintiff bank to recover payment on two promissory notes (notes) against the defendants. The defendants moved to dismiss the complaint with prejudice, or in the alternative, to stay the action pending the outcome of a New Jersey foreclosure action commenced against them by the plaintiff.

A defendant (borrower) had borrowed money for the purchase of commercial property located in New Jersey and had executed promissory notes in connection therewith. Another defendant had guaranteed the notes (guarantor). The plaintiff thereafter notified the borrower that she had defaulted on the loan. After payment was not received, the plaintiff commenced a mortgage foreclosure action in New Jersey.

The New Jersey complaint sought, inter alia, "a judgment against defendants fixing the amount due on the mortgage, barring and foreclosing defendants and all other parties having an interest in the mortgaged property of all equity of redemption in and to the mortgaged property, terminating all leasehold or possessory interests in the mortgaged property, directing plaintiff be paid the amount due on [the mortgages], and adjudging that the mortgaged property be sold according to law to satisfy the amount due to plaintiff on the mortgages."

The plaintiff thereafter commenced the subject action against the defendants, seeking to collect on the notes from the borrower and the guarantor.

The defendants had sought to dismiss the complaint on the grounds, inter alia, that it was barred by Real Property Actions and Proceedings Law (RPAPL) 1301(3). That statute provides that "while a foreclosure action 'is pending...no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.'" The election of remedies principle applies to an action to recover under the guaranty of a note.

Prior case law held that "[a]lthough RPAPL 1301(3) prohibits a mortgage lender seeking repayment of a loan from simultaneously prosecuting an action at law to recover upon a promissory note and an action in equity to foreclose the mortgage, the prohibition does not apply where...the property securing the loan is located outside of New York State...." Since the subject mortgaged property is located in New Jersey, RPAPL 1301(3) is inapplicable.

However, the court stated that although "RPAPL 1301(3) is not technically applicable to this case," the court would consider "its underlying legislative purpose and policy, to avoid the duplication of claims by the same party and multiple litigation simultaneously addressing the same issues...." The court also noted that "RPAPL 1301 seeks 'to protect the mortgagor "from the expense and annoyance" of simultaneously defending against two independent actions to recover the same mortgage debt.'" The court opined that such "policy would be contravened if this action were permitted to simultaneously proceed with the New Jersey action." Additionally, the court cited a desire to avoid the risk of "inconsistent rulings regarding the sums due on the notes."

The defendants had not sought to enjoin the pending foreclosure case in New Jersey, but sought to avoid duplicative litigation in New York. The foreclosure action, which named both the borrower and the guarantor as defendants, was continuing in New Jersey and the subject action had been brought against the defendants on the same debt that is the subject of the mortgage foreclosure action in New Jersey.

The defendants also sought to dismiss the instant action based on CPLR 3211(a)(4), i.e., on the ground that "another action is presently pending in New Jersey between the same parties based on the same debt." CPLR 3211(a)(4) provides that "the court need not dismiss upon this ground but may make such order as justice requires."

The court explained that:

Where there is a substantial identity of the parties, the two actions are suf­ficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursu­ant to CPLR 3211 (a) (4) on the ground that there is another action pending.... Substantial, not complete, identity of parties is all that is required to invoke CPLR 3211(a)(4).

Here, the court was dealing with two actions that arose out of the same "alleged actionable wrong, defendants' failure to make payment on the notes and...the two actions are substantially identical, but for the remedy of the sale of the real prop­erty." Moreover, the relief sought in the New Jersey action included "a judgment directing that plaintiff be paid the amount due on the mortgages...." Thus, the court found that the relief sought in the New Jersey action was "substantially the same relief as sought in this New York action...."

The court held that CPLR 3211(a)(4) is applicable to the subject action since there is "a pending mortgage foreclosure action by plaintiff on the same debt." The court reasoned that the plaintiff made "a decision to foreclose on the mortgages and should not be permitted to commence a second simultaneous action attempting to recover the same debt before the New Jersey court has made a determination."

The plaintiff contended that the relief sought in the New Jersey action was differ­ent from the relief it sought in the New York action because the New Jersey action was "an in rem proceeding in which it seeks to foreclose on the mortgaged property and...it does not seek a monetary judgment against defendants in that action." The plaintiff cited a New Jersey court rule which governs joinder of claims in foreclosure which provided that except for good cause shown, "claims for foreclosure of mort­gages shall not be joined with non-germane claims against the mortgagor or other persons liable on the debt. Only germane counterclaims and cross-claims may be pleaded in foreclosure actions without leave of court. Non-germane claims shall include, but not be limited to, claims on the instrument of obligation evidencing the mortgage debt, assumption agreements and guarantees."

The plaintiff argued that a claim on "the notes or the guaranty is not a germane claim which could be brought in the New Jersey action." However, the court found that although the New Jersey action was not an action to recover on the notes or guaranty, the plaintiff sought "to recover the same debt based upon, and secured by, the same notes." The court reasoned that "[t]o permit plaintiff to proceed simultaneously with both actions would result in duplicative litigation and a pos­sible double recovery."

The court explained that although CPLR 3211(a)(4) applies to the subject action, the court "need not dismiss an action pursuant to this section, but may, instead, grant a stay." The court then explained that "the preferred course is to stay the New York action, pending a final determination of such prior action...."

Additionally, the court noted that "[i]n New York, 'a plaintiff in a foreclosure ac­tion may seek a deficiency judgment in the complaint, as incidental to the principal relief demanded.'" See RPAPL 1371(1) and (2). Here, the New Jersey mortgage foreclosure action and the allegations in the New Jersey complaint did not seek a deficiency judgment against the defendants, "although a declaration of total liabil­ity on the debt is sought."

The plaintiff argued that "it cannot or will not seek a deficiency judgment in the New Jersey action." The court stated that, although the New Jersey action "should resolve all issues between the parties," it is possible that upon the foreclosure and sale, the proceeds will be insufficient to satisfy the judgment. The plaintiff may not be able to obtain "a deficiency judgment against defendants sufficient to satisfy its judgment." Therefore, the court stayed the subject action in order to "allow plain­tiff to proceed against [the defendant borrower] on the notes and...against [the guarantor]...." Accordingly, the court granted the defendants' motion to the extent of staying the instant action until the completion of the New Jersey action.

Wells Fargo Bank v. Pena, 500827/2015, NYLJ 1202747953185, at *1 (Sup., KI, De­cided Jan. 6, 2016), Demarest, J.

Previously published in the March 30, 2016 edition of the New York Law Journal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.