41 A.D.2d 950 | N.Y. App. Div. | 1973
In an action for a declaratory judgment, a mandatory injunction, etc., plaintiffs appeal from an order of the Supreme Court, Nassau County, dated July 31, 1972, which (1) granted the branch of a motion by defendant Chock Full of Power Gasoline Corp. which was to dismiss the complaint and (2) denied plaintiff’s cross motion for summary judgment. Order modified by striking therefrom the second decretal paragraph, which granted said branch of said defendant’s motion, and substituting therefor a provision denying such relief. As so modified, order affirmed, with $20 costs and disbursements to appellants. On February 10, 1965, defendant Linmont Properties, Inc., purchased a corner lot from Newman, Nager and Wolf (NN&W), who were individual distributors of American Oil Company (Amoco) products, in order to construct and operate a gasoline filling station. The lot was then already improved as such a station. Linmont, the owner of a parcel at the other corner of the same blockfront, separated from the NN&W lot by a depressed area owned by the Long Island State Park Commission, was, desirous of building a gasoline station upon substantially the entire blockfront with the permission of the Park Commission. On. February 10, 1965, Linmont and NN&W executed a “ requirements ” agreement which was duly recorded on February 15, 1965. Linmont therein agreed for itself and “any subsequent owner, tenant, subtenant or occupant” of the station to purchase all of their requirements of gasoline, oil and petroleum products through NN&W or its designee (Newtal), the products to be those of Amoco. The agreement provided for termination after 10 years “ or sooner in accordance with any written agreement between the parties.” By separate agreements, NN&W agreed to subordinate Linmont’s purchase money mortgage of $32,369.57 to a mortgage to be given by Linmont to Amoco in the amount of $200,000 and Newtal agreed to pay Amoco $36,000 towards the cost of constructing the necessary underground gasoline storage tanks, with the payments to Amoco to be made in monthly installments of $300 over the 10-year life of the prime
Enforcement of such a burden comes under the general doctrine of equitable servitudes. Under this doctrine,' an agreement not otherwise running with the land may be enforced in equity as a servitude against the burdened land as to subsequent purchasers with notice (Trustees v. Lynch, 70 N. Y. 440). However, in every ease in this jurisdiction in which the doctrine of equitable servitudes has been applied, the equitable incorporeal interest in the burdened land has been appurtenant to a dominant parcel of benefited •land (e.g., Lewis v. Gollner, 129 N. Y. 227; Hodge v. Sloan, 107 N. Y. 244).