Edward J. Behar et al., Respondents, v Michael Wiblishauser et al., Appellants.
Supreme Court, Appellate Division, Second Department, New York
2012
99 AD3d 838 | 953 NYS2d 51
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see
Soon after the plaintiffs purchased the property, they commenced this action for a judgment declaring that a three-foot-wide strip of the defendants’ asphalt driveway and curbing encroached onto their property and for an injunction requiring the defendants to remove the encroachment. In their answer, the defendants alleged that the driveway had existed in its current condition for more than ten years, and that they and their predecessors-in-interest had used the driveway on a daily basis since 1979. The defendants also counterclaimed for a judgment declaring that they had a prescriptive easement over the portion of the driveway that encroached upon plaintiffs’ property, and to enjoin the plaintiffs from interfering with their use of the prescriptive easement.
The plaintiffs moved for summary judgment on the complaint and in connection with the counterclaims, arguing that the defendants’ claim to a prescriptive easement was extinguished by the tax sale and deed conveyance to Suffolk County in 2003.
Suffolk County, in effect, provides for two different time periods wherein a property owner may re-acquire his or her property after it has been “lost” due to delinquent real estate taxes. Pursuant to the
However, Suffolk County also provides a somewhat unusual procedure that affords a property owner a second chance to reacquire his or her property after a tax sale and deed conveyance. Under the prior version of the Suffolk County Administrative Code, which is applicable in this case, the property owner had nine months from the time the deed is recorded to apply for “redemption/release” of the property (see
Accordingly, and contrary to the plaintiffs’ contention, delinquent tax property in Suffolk County cannot only be redeemed in the first 36 months after the tax sale. Indeed, the program by which Scifo reobtained her property is titled “Procedure for redemption of property under Suffolk County Tax Act” (see
As a general rule, the redemption of property means that a property owner reacquires the same property he or she previously owned. Here, the tax deed by which the County Treasurer conveyed the property to the County in February 2003 states that it conveyed “the title and interest [of Scifo] to whom said premises were assessed and appear heretofore to have belonged and of all other persons except the claims, if any, which the County or State have thereon for taxes or liens or incumbrances.” The tax deed also stated that the subject property was conveyed to the County “with the hereditaments and appurtenances to the same belonging to be located and laid out and possession acquired” by the County. Accordingly, the property was conveyed subject to the easement. In fact, the 2004 deed by which the County conveyed the property back to Scifo stated that the conveyance was “SUBJECT to all covenants, restrictions and easements of record, if any” (emphasis added). The 2004 deed also specified that it conveyed only the title as acquired by the County in February 2003, “TOGETHER with the appurtenances and all the estate and rights of [the County] in and to said premises.”
Therefore, even though the 2004 deed specifies that the conveyance was subject to any easements of record, and the easement here was not recorded, the 2004 deed still conveyed only that title which the County had acquired, i.e., with all appurtenances and restrictions, including any easement by prescription (see Will v Gates, 89 NY2d 778, 783 [1997]; Beutler v Maynard, 80 AD2d 982 [1981], affd 56 NY2d 538 [1982]). In other words, because the County was the purchaser here, and Scifo redeemed the property, she reacquired through the
Moreover, it is a long-standing rule that private easements of light, air, and access of adjoining land owners that were lawfully acquired before the levying of a tax are not extinguished by a tax sale (see Tax Lien Co. of N.Y. v Schultze, 213 NY 9, 12 [1914]; Beeman v Pawelek, 96 NYS2d 204, 218 [1949], affd 276 App Div 1057 [1950]; Wilkinson v Nassau Shores, 1 Misc 2d 917, 924 [1949], affd 278 App Div 970 [1951], affd 304 NY 614 [1952]; see also Queens Park Gardens, Inc. v Long Is. Water Corp., 277 App Div 1146 [1950]). Indeed, many jurisdictions in the United States adhere to the principle that an easement is not extinguished by a tax sale (see generally Holly Piehler Rockwell, Easement, Servitude, or Covenant as Affected by Sale for Taxes, 7 ALR5th 187).
Finally, it would be illogical to conclude that a property owner can invalidate an otherwise valid easement by defaulting in the payment of real estate taxes and then reacquiring the property through the redemption/release procedure. While it certainly would be extreme for a property owner to engage in such a process merely to undo an easement over a three-foot-wide strip of land, one could easily envision a situation where the owner of the servient estate might contemplate a tax default and redemption in order to rid itself of a more cumbersome easement. Nor is there merit to the plaintiffs’ contention that the defendants could have preserved their easement by simply paying Scifo‘s back taxes and thus avoiding the tax sale. Such a conclusion assumes that the defendants were aware of Scifo‘s default. The defendants would not have received any notice of such default and it is pure speculation to assume that they had such knowledge.
Accordingly, the Supreme Court erred in awarding summary judgment in favor of the plaintiffs on the basis that the prior tax sale and deed conveying their property to the County of Suffolk extinguished the defendants’ alleged easement. Moreover, there remain triable issues of fact as to whether the defendants’ predecessors-in-interest established a prescriptive easement before Scifo‘s 1997/1998 tax default (see Beutler v Maynard, 80 AD2d 982, 982 [1981]; see also Pagano v Kramer, 21 NY2d 910 [1968]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Angiolillo, J.P., Belen, Roman and Sgroi, JJ., concur.
Motion by the respondents on appeals from an order of the Supreme Court, Suffolk County, dated March 1, 2011, and a judgment of the same court dated November 9, 2011, to dismiss the appeal from the order on the ground that the right of direct appeal therefrom terminated upon entry of the judgment. By decision and order on motion of this Court dated March 8, 2012, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Ordered that the motion is denied as academic in light of our determination of the appeals (see Behar v Wiblishauser, 99 AD3d 838 [2012] [decided herewith]). Angiolillo, J.P., Belen, Roman and Sgroi, JJ., concur.