DECISION & ORDER AFTER TRIAL In a decision dated August 30, 2018, following a non-jury trial, this court found that plaintiff Bedik Corporation has an easement by prescription over a patch of vacant paved land owned by defendant Herrick Road Holdings LLC (HRH) that is adjacent to Bedik’s property. The land has been used for decades by trucks delivering and receiving goods to and from the loading bays of Bedik’s building. Familiarity with the court’s August 30 decision is assumed. Because HRH now desires to secure the area in question with a fence in connection with its intended development of the property, the precise dimensions of the easement must be determined. In this regard, the court heard additional testimony on October 29, 2018.Two witnesses testified for Bedik concerning the parameters of the easement: Gary Spinello, an architect hired by Bedik to assist it with this litigation and William Muran, an owner and a manager of operations at the Bedik building. No testimony was offered by HRH.THE TESTIMONYMuran testified that he observed delivery trucks going in and out of the Bedik facility for 38 years and that they always generally followed the same path. Trucks enter the area from Armstrong Road to the north, travel east past the Bedik building and then bear south towards Bedik’s loading bays, located on the east side of the Bedik building. The trucks then bear east, in the direction of HRH’s building across from the loading bays, and utilize the vacant area between the two buildings to maneuver the trucks as they back into the loading bays. The trucks exit the loading bays by turning north and generally retrace their route back to Armstrong Road. Muran further testified that Bedik’s Exhibit 12, a diagram drawn by Spinello, fairly reflects the area in question used by trucks to get to and maneuver into and out of Bedik’s loading bays.Spinello testified for the second time. The first time he testified, on April 17 and 18, 2018, he stated that he visited the site on two or three occasions and personally witnessed the paths the trucks took as they crossed over onto HRH’s property. During this initial testimony, Spinello relied upon a drawing he prepared—entered into evidence as Exhibit 9—to demonstrate the path of the trucks over HRH’s property as they accessed Bedik’s loading bays. During his testimony on October 29, Spinello relied upon a new, more recent drawing—Exhibit 12—in support of his testimony establishing the dimensions of the easement. The easement dimensions as depicted Exhibit 12 differ from those in Exhibit 9 in two important respects.First, the easement area directly across from Bedik’s loading bays is different. In Exhibit 12 the easement juts onto HRH’s property 95 feet lengthwise and 60 feet widthwise at this location. In Exhibit 9, the easement is 85 feet in length. Spinello testified that he never saw a truck extend onto HRH’s property the additional 10 feet reflected in Exhibit 12, but he believes the increased distance would make it easier for the trucks to maneuver. Exhibit 12 also differs at this location from a diagram drawn by Spinello dated October 27, 2016, Exhibit D in evidence, upon which Bedik relied in its bill of particulars. In Exhibit D, Spinello depicted the claimed easement as 78 feet in length at this location, after observing a truck make the required maneuvers to and from the loading bays.The second manner in which Exhibit 12 differs from Exhibit 9 is that the claimed easement area north of the loading bays (the point of ingress and egress to and from HRH’s property) is reduced. But the arc depicted by Spinello for this area on Exhibit 12 is still larger than that which is depicted in another diagram drawn by Spinello three weeks earlier—Exhibit I. And Spinello testified that he observed a truck that was able to access the Bedik loading bays within the easement boundaries reflected in Exhibit I.For the reasons discussed below, this court finds that the dimensions of the easement are as reflected in Exhibit I, modified to reduce the eastern most boundary to 78 feet as reflected in Exhibit D.Legal AnalysisThis court has found that for decades trucks seeking to access Bedik’s loading bays have traversed an identified portion of HRH’s property to do so. HRH has argued that no easement by prescription can be declared because Bedik cannot identify a sole path utilized by the trucks over its property. See Zutt v. State, 50 A.D.3d 1133 (2d Dept. 2008)(denying easement since party failed to show what portion of relevant land was actually used during the relevant period). HRH’s argument is buttressed by the differing diagrams drawn by Spinello.But HRH ignores that Bedik has established by clear and convincing evidence that trucks have utilized a substantially identical path over HRH’s unmarked pavement for an identical purpose: to back into and out of Bedik’s loading bays. It should come as no surprise that different truck drivers of varying skills attempting to back a 75-foot rig into a narrow loading bay over unmarked pavement would not follow a single, specific line of travel. The inconsequential variations of the drivers’ paths, as reflected in the Spinello drawings, do not alter the conclusion that the adverse use of HRH’s property was identifiable, so that HRH was placed on fair notice of Bedik’s hostile use.The concept of fair notice to a property owner of another’s adverse use underlies the requirement that an easement by prescription have determinate boundaries. To satisfy the open and notorious element of a prescriptive easement claim, a party’s use of another’s land should be substantial and reasonably definite. Restatement (Third) of Property (Servitudes) §2.17 comment h at 274 (2000). “Claims for rights of way must be based on uses that are substantially confined to a regular route.” Id. (emphasis added). Equity also dictates that the acquisition of a right to utilize another’s land be limited at least to the actual past use made of such land.There are few cases in New York discussing the scope of a prescriptive easement and none similar to the facts before the court. In Patel v. Garden Homes Management Corp., 156 A.D.3d 807 (2d Dept. 2017), the court held that the right acquired by prescription is commensurate with the right enjoyed by the party obtaining the easement and that the defendant could obtain a prescriptive easement only equal in area to that portion of the plaintiff’s property actually used. Id. at 809; see also Vitiello v. Merwin, 87 A.D.3d 632 (2d Dept. 2011); Thury v. Britannia Acquisition Corp., 19 A.D.3d 586 (2d Dept. 2005). But these cases do not squarely address the situation where the purpose of the claimed easement remains the same but there are slight deviations in the path used over the servient estate.Cases from other jurisdictions have addressed this issue in cases remarkably similar to this one. In California, its Supreme Court held that slight deviations from an accustomed route will not defeat an easement. Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564 (1984). In Warsaw, the plaintiff and defendant owned adjoining commercial parcels purchased from the same owner. Trucks servicing the plaintiff’s commercial building used a portion of the defendant’s vacant lot to enter, turn, park and leave the area of plaintiff’s loading dock. The defendant then constructed a warehouse partially on the area of the vacant lot needed for plaintiff’s trucks to maneuver into its loading bays, and plaintiff sought injunctive relief. The trial court granted the injunction, finding that the truck drivers had followed a definite course and pattern, with slight deviation.The Supreme Court affirmed the trial court’s ruling, notwithstanding that California law requires that the existence of a prescriptive easement be shown by a definite and certain line of travel. In affirming, the Supreme Court explained:The evidence revealed that truck drivers who were making deliveries to or receiving goods from plaintiffs used the parcel to approach the building, swing around and back into plaintiffs’ loading dock. Since the drivers varied in their abilities, the space required to complete this manuever [sic] was variable. No two drivers followed precisely the same course, but all used the parcel for the same purpose—to turn their vehicles so they could enter plaintiffs’ loading docks.The Supreme Court therefore held that the inevitable differences in the paths utilized by the drivers did not defeat the prescriptive easement claim because a definite pattern was followed for a similar purpose.In Community Feed Store, Inc. v. Northeastern Culvert Corporation, 151 Vt. 152 (1989), the Vermont Supreme Court came to a similar conclusion when faced with nearly identical facts. In that action, the plaintiff sought a prescriptive easement over vacant land of its neighbor used by its customers and supplier delivery trucks for turning and backing into its mill’s loading docks. The trial court denied plaintiff’s claim for a prescriptive easement, in part because the plaintiff purportedly failed to prove what portion of the defendant’s land was used by the vehicles.The Vermont Supreme Court reversed, finding that the extent of the use “must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period.” Id. at 158. The Supreme Court’s analysis persuasively demonstrated that its conclusion was consistent with similar cases from other jurisdictions and the Restatement of Property. See, e.g., O’Brien v. Hamilton, 15 Mass. App. Ct. 960 (1983)(extent of easement is measured by general pattern formed by the adverse use); Restatement of Property §477 (1944); see also Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 124 (2005)(use leading to prescriptive easement must define its bounds with reasonable certainty) and cases cited therein in fn. 23; Concerned Citizens of Brunswick County Taxpayers Ass’n. v. State ex rel. Rhodes, 329 N.C. 37 (1991)(use of roadway need not be confined to a definite and specific line of travel but rather there must be a “substantial identity” of traveled way claimed).Irrespective of whether New York were to adopt the “pattern of use,” “substantial identity,” or “definite line of travel” test, Bedik has set forth sufficient evidence to establish its right to the claimed easement. It produced an eyewitness attesting to the consistent pattern of travel utilized by the delivery trucks with only slight deviations and evidence delineating this pattern was introduced.For sure, Bedik does not help its cause by submitting diagrams with varying descriptions of its claimed easement. But the discrepancies—while significant to HRH because every foot of property burdened could affect its desire to proceed with submitted and approved development plans—are not substantial given the overall size of the vacant lot in question. Furthermore, some discrepancies were explained by Spinello as emanating from his inclusion in certain diagrams of additional space to provide a cushion for less-skilled drivers and for convenience. This court will not include such additional space as part of the prescriptive easement. While some variation of the trucks’ actual use of the vacant lot is explainable and acceptable, the touchstone remains that the easement is limited to actual use.Furthermore, given the varying paths used by the trucks, equity dictates in these circumstances that the right-of-way be limited to the area necessary for the purpose of the easement. See Ledlley v. D.J. & N.A. Management, Ltd., 228 A.D.2d 482 (2d Dept. 1996). Spinello testified that he observed trucks successfully accessing and leaving the loading bays utilizing the easement area reflected in Exhibit I. Trucks were also able to successfully navigate the area utilizing an eastern boundary of 78 feet as reflected in Exhibit D. These are the least intrusive uses of HRH’s land and, therefore, are the appropriate dimensions of the easement. Plaintiff is to submit a judgment on notice.Finally, the trial was originally scheduled to resume on October 16, 2018 at 9:30 a.m., but Bedik failed to appear. HRH’s counsel appeared with his client, prepared to proceed. When Bedik’s counsel was contacted he explained that he was unaware of the new trial date and he appeared approximately an hour and a half later. At that time, Bedik’s counsel stated that he was not prepared to proceed and requested an adjournment. The adjournment was granted, but the court instructed HRH to submit an affirmation if it desired to be reimbursed for its expenses incurred resulting from Bedik’s failure to appear for the scheduled trial.HRH’s counsel’s affirmation reflects that HRH incurred $1,462.50 in counsel fees for its counsel’s appearance on October 16. This amount is reasonable and fair and Bedik is hereby ordered to pay this amount to HRH within 30 days of service of Notice of Entry of this decision and order.Contrary to Bedik’s argument to the court opposing this relief, this amount is not a sanction. Courts have the inherent power to require a party to reimburse another for the extra expense incurred as a result of their unreasonable failure to proceed to trial as scheduled. See Atkinson v. LoConti, 24 A.D.2d 757 (2d Dept. 1965). Such an order is preferred over dismissing the action where the default is not willful and the claim may be meritorious.This constitutes the Decision and Order of this court.Dated: December 14, 2018Mineola, New York
