On at least three occasions, in 1961, 1966 and 1972, the parties to  a shared driveway easement confirmed its existence in writings contained in deeds and a stand-alone written agreement.

Despite this fact,  in a recent Kings County Supreme Court decision, plaintiffs Braunsteins, neighbors to the widow of famed baseball player Gil Hodges, were denied an injunction and effectively lost their rights to use the shared driveway to access their garage before they even purchased the property. Was this decision the right call or not?  Well, let’s review the play!

Court’s Reasoning

In deciding this case, the Court held that even before the Braunsteins purchased their property in 2002, Mrs. Hodges had acquired all rights to the easement by adverse possession based on the fact that the prior owners, the Golds, parked their vehicles on the street, not on the driveway.  Further, testimony in the form  of a non-party affidavit was submitted alleging that the Golds used the garage for storage and acknowledged that “t[he] driveway belongs to the Hodges family.”

In adopting these facts, the Court rejected Braunsteins’ uncontroverted evidence that between 2002 and 2013, the Braunsteins “were renovating their property and had workers using the driveway to finish construction and gain access to their garage.”  In fact, during the construction period, lasting almost 13 years, non-party Falco stated that Mrs. Hodges “always complied with the requests of Braunstein’s workers and/or agents’ requests to have her car moved from the driveway.  She either gave her car keys to the workers ‘for them to back the car out and then, after the delivery of the building materials, to park the car back onto the driveway or just moving it herself.’ “

According to the facts, at no time did Mrs. Hodges advise the construction workers or the Braunsteins that moving her car was merely a convenience.  This would have confirmed her contention that the easement which the Braunsteins believed they possessed, and was conveyed to them when they purchased the property 13 years prior, had been acquired years before their purchase by adverse possession as a result of the Golds’ non-use.

Flawed Reasoning?

This case could be analyzed for hours, and the facts supporting it are ripe for a re-play.   Here, the Court conclusively determined, by dismissing Braunsteins’ claims, that Mrs. Hodges established adverse possession by “clear and convincing credible evidence.”  This statement is simply not supported by the facts.  If the relief granted was merely to deny the injunctive relief request, and not to dismiss Braunsteins’ claims, then maybe a “foul” call would not be ripe.  In this case, however, the Court determined the ultimate relief based on contradictory evidence, such as the statement of Mrs. Hodges that she never moved her car.  This is clearly contradicted by the Affidavit of Ms. Falco, which states that Mrs. Hodges did move her car.

Likewise, having spent many years in the title insurance industry and upon reading this case,  questions instantly arose in my mind as to whether the easement in question was insured.  If it was, did the Golds sign an Affidavit or notify the Braunsteins that, despite three writings to the contrary, the Golds abandoned their absolute right to use the easement?  Would the Braunsteins have purchased the property if they knew that they had no access to their garage, and that the written easement was extinguished?

Implications of Decision

Further, what certainty do title insurers, sellers, purchasers and their attorneys have when more than 13 years later, a neighbor can successfully extinguish an easement, which has been established by 1) no less than three writings, 2) existing for nearly 52 years and 3) being in active use by the Braunsteins during their renovation project, as evidenced by their use of the easement, without objection, for more than 13 years.

Is this dispute in the first or the last inning?  Tune into Farrell Fritz’s regularly scheduled Monday blog posts to find out who the winning team is!