Arvay v. New York Telephone Co.

In an action, inter alia, to compel the defendant to remove certain of its equipment from real property owned by plaintiffs, the appeal is from an order of the Supreme Court, Kings County, dated August 13, 1979, which denied plaintiffs’ motion for partial summary judgment. Order affirmed, with $50 costs and disbursements. The agreements between defendant and plaintiffs’ grantor created an easement pursuant to which defendant has been permitted to maintain its equipment on the subject property. These agreements were not recorded, and indeed could not have been, as they lacked certain of the formal requisites. Nonetheless, they were sufficient to create rights enforceable between the original parties and against a purchaser of the premises with notice (see Historic Estates v United Paper Bd. Co., 260 App Div 344, affd 285 NY 658). The question of whether plaintiffs had the requisite notice of defendant’s easement at the time they purchased the property is one of fact, and therefore precludes the granting of partial summary judgment. Lazer, J.P., Mangano and Gibbons, JJ., concur.