450 West 14th St. Corp. v. 40-56 Tenth Avenue LLC
747 N.Y.S.2d 506
N.Y. App. Div.
2002
Check Treatment

Order, Supreme Court, New York County (Edward Lehner, J.), entered March 14, 2002, which, to the extent appealed from as limited by the brief, upon renewal, granted that branch of *114plaintiffs cross motion for summary judgment on the first cause of action in the amended verified complaint to the extent that it declared a certain easement, granted to defendant 40-56 Tenth Avenue LLC pursuant to an easement agreement, terminated, unanimously reversed, on the law, without costs, plaintiffs motion for summary judgment of the first cause of action denied and defendants awarded judgment declaring that their rights under the easement agreement remain unaffected.

Defendant 40-56 Tenth Avenue LLC (Tenth Avenue) owns certain real property adjoining real estate owned by plaintiff 450 West 14th St. Corp. Pursuant to a 1962 easement agreement and subsequent modification, plaintiffs predecessor conveyed to Tenth Avenue’s predecessor an easement over a certain portion of plaintiff’s property known as the De Lamater Square premises. The original agreement provides in relevant part that the easement is “for so long as the business of dealing in meats, meat products or other food products is carried H* H* ^

Because a fire has extensively damaged the De Lamater Square premises, plaintiff contends the easement is terminated. However, we conclude that it is not clear at this juncture that the qualifying conditions for granting and continuing that easement have ceased. Notably, before the fire, Tenth Avenue was actively seeking a meat-packing tenant. Furthermore, while the fire may have caused the premises substantial damage, there is no evidence that Tenth Avenue has abandoned the property. Moreover, the condition written into the easement, which limits the premises’ use, allows Tenth Avenue to rent the space to any business engaged in “food products.” Absent “clear and convincing” proof (Hennessy v Murdock, 137 NY 317, 326) that Tenth Avenue intended to “permanently relinquish all rights,” the easement retains its legal life (see Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 40). Accordingly, summary judgment on the first cause of action should have been granted in defendants’ favor. Concur— Nardelli, J.P., Mazzarelli, Buckley, Sullivan and Marlow, JJ. [See 187 Misc 2d 735.]