Wednesday, September 22, 2010

Gerges dismisses case claiming state had failed to condemn easement over Spalding Building

Brooklyn Supreme Court Justice Abraham Gerges on September 20 dismissed a claim by Peter Williams Enterprises (PWE) regarding air rights above 24 Sixth Avenue (the Spalding Building), agreeing with the Empire State Development Corporation that PWE released such rights when it sold its own nearby property, the one-story 38 Sixth Avenue and that the exercise of eminent domain "extinguished all easements."

Williams had publicly said that he had brought the claim for money and his attorney asserted that the state had made a "colossal mistake" in not specifying that the easement was subject to eminent domain.

In court arguments on August 6, there was a small twist, suggesting there might be something to PWE's claim. While the ESDC's appraisal to PWE covered the building and the easement, the sums were lumped together in the offer to PWE. But Gerges didn't address that directly.

From the decision

Gerges wrote:
The court finds that defendants have demonstrated that tax lot 7501 does not refer to a parcel of property that was conveyed to PWE... In addition, a review of the Easement Agreement and the Condominium Declaration make no mention of Lot 7501. Thus, even if Lot 7501 does exist as a separately identifiable tax lot, there is no evidence before the court to establish that it was ever transferred to PWE.

Herein, a review of the Easement Agreement compels the conclusion that Yoshizumi [the seller] intended to convey to PWE only an easement for light, air and emergency egress, and did not intend to convey an interest in Lot 35 [Spalding]....

Having so held, the above discussed general principles of law compel the conclusion that after ESDC acquired title to Lot 48 [38 Sixth Avenue], which acquisition is not contested by PWE, ESDC acquired the easement over Lot 35 by operation of law, since it is clear that an existing easement appurtenant will pass to the grantee of a dominate estate even if the deed does not expressly refer to the easement....

Finally, since ESDC took the subject properties through eminent domain, it took title in fee simple absolute and extinguished all easements.
Gerges decision in easement case

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