Manhattan Beach Community Group, Inc. v. Laboz, 224 A.D.2d 394, 638 N.Y.S.2d 112 (N.Y.A.D. 2 Dept., Feb 05, 1996) (NO. 94-03803)

Supreme Court, Appellate Division, Second Department, New York.
MANHATTAN BEACH COMMUNITY GROUP, INC., et al., Appellants,v.Jack LABOZ, et al., Respondents.

Feb. 5, 1996.

 Claimant property owners sought to permanently enjoin defendant landowners from interfering with use of alleged easement over land that was part of private walkway.   The Supreme Court, Kings County, Yoswein, J., dismissed action, and claimants appealed.   The Supreme Court, Appellate Division, held that claimants did not have implied easement by grant over property.
 Affirmed.

West Headnotes
[1] Easements  3(2)141k3(2) Most Cited Cases
When property is described in conveyance with reference to subdivision map showing streets abutting on lot conveyed, easements in private streets appurtenant to lot generally pass with grant.
[2] Easements  15.1141k15.1 Most Cited Cases
In determining if there is implied easement by grant, main factor to be considered is intent of parties to grant, taking into consideration circumstances attending transaction, particular situation of parties, state of country, and state of thing granted.
[3] Easements  17(1)141k17(1) Most Cited Cases
Claimant property owners did not have implied easement by grant over defendant landowners property which was part of private walkway, where none of claimants' property abutted walkway, deeds to two claimants' properties made no reference to maps which depicted walkway, and walkway was subdivided into separate lots, and sold separately. **112 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum and Ira Levine, of counsel), for appellants.
 Lawrence M. Sands, P.C., New York City, and Jerome Karp, Brooklyn, for respondents (one brief filed).

 Before THOMPSON, J.P., and FRIEDMANN, KRAUSMAN and FLORIO, JJ.


 *394 MEMORANDUM BY THE COURT.
 In an action, inter alia, to permanently enjoin the defendants from interfering with the use of an alleged easement over part of the defendants' property, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County (Yoswein, J.), dated March 9, 1994, as, after a nonjury trial, dismissed the action.
 ORDERED that the judgment is affirmed insofar as appealed from, with costs.
 [1][2] "It is well established that when property is described in a conveyance with reference to a subdivision map showing **113 streets abutting on the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant (see, 1 Rasch, Real Property Law and Practice §  744 * * * Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20 [150 N.Y.S.2d 13, 133 N.E.2d 505];  Erit Realty Corp. v. Sea Gate Assn., 259 NY 466 [182 N.E. 85] )" (Fischer v. Liebman, 137 A.D.2d 485, 487, 524 N.Y.S.2d 720). In determining if there is an implied easement by grant, the main factor to be considered is the intent of the parties to the grant, taking into consideration "the circumstances attending the transaction, the particular situation of the parties, the state of the country and the state of the thing granted" (Matter of City of New York (Northern Blvd.), 258 N.Y. 136, 147- 148, 179 N.E. 321).
 [3] The plaintiffs' contention that they had an implied easement by grant over the defendants' property, which was part of a private walkway called the Esplanade, is without merit.   First, none of the plaintiffs' property abuts the Esplanade (see, 1 Rasch, Real Property Law and Practice §  744;  Weil v. Atlantic Beach Holding Corp., supra;  Erit Realty Corp. v. Sea Gate Assn., supra;  Reis v. City of New York, 188 N.Y. 58, 80 N.E. 573;  Fischer v. Liebman, supra ).   Second, the deeds to the properties of the plaintiffs Stern and Maltz make no reference to maps which depict the Esplanade (see, 1 Rasch, Real Property Law and Practice §  744;  Weil v. Atlantic Beach Holding Corp., supra;  Erit Realty Corp. v. Sea Gate Assn., supra;  Fischer v. Liebman, supra ).   Finally, the Esplanade was subdivided into separate lots, and sold separately (*395 cf., Weil v. Atlantic Beach Holding Corp., supra ). Therefore, the plaintiffs failed to meet their burden of proving that an implied easement by grant existed by clear and convincing proof (see, Huggins v. Castle Estates, 36 N.Y.2d 427, 369 N.Y.S.2d 80, 330 N.E.2d 48).
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