NYC Judge Rules No Easement So Fence May Remain

In Asian American HDFC, Inc. v. 110 Ridge St. Venture, LLC, 2018 WL 3428569 (2018), the New York State Supreme Court, Justice Barbara Jaffe, denied Plaintiff’s request for an injunction prohibiting the Defendant from blocking Plaintiff’s secondary means of fire egress with a fence.

The Plaintiff and Defendant own adjacent properties in Manhattan.  The Plaintiff had received a violation from the City of New York alleging that the Plaintiff’s building did not have the requisite secondary means of fire egress.  Plaintiff sued the Defendant, seeking an injunction based on the legal theory that Plaintiff had an easement over Defendant’s property.

Plaintiff claimed, among other things, that the fire escapes existed since 1902, that Defendant’s fence had only been erected recently, and that the Defendant had removed a door in the fence that previously allowed for fire egress.

Defendant claimed, among other things, that there was no written easement, that Plaintiff only purchased the building recently, that there was never any gate in the fence, and that Plaintiff can achieve secondary fire egress through other means.

The Court examined whether the Plaintiff had an easement appurtenant, easement by implication, easement by necessity, or easement by prescription.

The Court held that an easement appurtenant did not exist because it was undisputed that there was no writing related to the alleged easement.

The Court held that an easement by implication did not exist because there was no evidence of unity and subsequent separation of title, which is one of the requirements.

The Court held that an easement by necessity did not exist because, similar to an easement by implication, there was no evidence that the two properties were once titled under the same deed, which is one of the requirements for an easement by implication.

The Court held that an easement by prescription did not exist because Plaintiff was unable to prove that there was previously a door in the fence; to the contrary, Defendant submitted proof that no such door existed.  Moreover, Plaintiff’s claim that the previous owner allowed the access negates the prima facie requirement of hostility.  The Court also found that the construction plans and survey were unreadable.

Based on the foregoing, the Court found that Plaintiff was not likely to succeed on the merits of its case, the court denied the Plaintiff’s motion for a preliminary injunction, and the Court allowed the fence to remain.

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