Easement by Necessity vs. Prescription: CPLR 3211(a) and the Limits of Preexisting Licenses

Introduction

In 572 Walt Whitman Rd. Holdings, LLC v. Whitman Capital, LLC, 2025 NYSlipOp 02179 (App. Div. 2d Dep’t Apr. 16, 2025), the Second Department clarified the standards for motions under CPLR 3211(a) in an action seeking declarations of an easement by necessity or a prescriptive easement, and addressed the interplay between a partial, express license and a subsequent claim of adverse use. The dispute arose after defendant landowners sought to fence off a 24-foot-wide, 330-foot-long strip of land over which the plaintiff had used for ingress and egress since the early 1960s. The plaintiff sued under RPAPL Art. 15, seeking declarations of easement by necessity or prescription and injunctive relief.

Summary of the Judgment

The Supreme Court (Suffolk Cnty.) denied defendants’ CPLR 3211(a)(1) & (7) motion to dismiss all causes of action, granted plaintiff’s preliminary injunction to enjoin installation of a fence, and fixed a $50,000 undertaking. On appeal, the Appellate Division modified: it dismissed the first cause of action (easement by necessity) by treating the motion as a request for a declaratory judgment in defendants’ favor, and affirmed denial of dismissal of the second cause (prescriptive easement) and the grant of the injunction.

Analysis

1. Precedents Cited

• CPLR 3211(a) Standards: Board of Mgrs. of 285 Driggs Ave. Condominium v. 285 Driggs Ave., LLC, 173 AD3d 821; Goshen v. Mutual Life Ins. Co., 98 NY2d 314; Paden v. Brooklyn Museum of Arts, 226 AD3d 920; Guggenheimer v. Ginzburg, 43 NY2d 268.
• Declaratory Judgment Motions: 88-18 Tropical Restaurante Corp. v. Utica First Ins. Co., 223 AD3d 772; St. Lawrence Univ. v. Trustees, 20 NY2d 317; Matter of Tilcon N.Y., Inc. v. Town of Poughkeepsie, 87 AD3d 1148.
• Easement by Necessity: Simone v. Heidelberg, 9 NY3d 177; Klumpp v. Freund, 83 AD3d 790; Turner v. Baisley, 197 AD2d 681; McColgan v. Brewer, 84 AD3d 1573.
• Prescriptive Easement: Aboulissan v. Kingsland 79, LLC, 179 AD3d 878; Bratone v. Conforti-Brown, 150 AD3d 1068; Monnot v. Murphy, 207 NY 240; Ciringione v. Ryan, 162 AD3d 634; Colin Realty Co., LLC v. Manhasset Pizza, LLC, 137 AD3d 838; Mispalleleh Beis Medresh Torah Vadaas v. Yeshivath Kehilath Yakov, 89 AD3d 700; Kheel v. Molinari, 165 AD3d 1576.
• Preliminary Injunction & Undertaking: County of Suffolk v. Givens, 106 AD3d 943; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839; Tahmin v. Interlaken Owners, Inc., 228 AD3d 983; Boyd v. Assanah, 210 AD3d 855.

2. Legal Reasoning

CPLR 3211(a) Motion: Documentary evidence—for example, deeds, maps, and the 1982 license—must “utterly refute” the complaint to warrant dismissal under CPLR 3211(a)(1). Under CPLR 3211(a)(7), the court accepts the pleadings’ allegations and grants dismissal only if no legal theory can sustain them. When a cause of action seeks only declaratory relief, a motion to dismiss may be converted into one for judgment in the defendant’s favor if no factual dispute exists.

Easement by Necessity: Plaintiff failed to plead “absolute necessity” at the time of severance because its lot already had viable access to a public road. Subsequent inconveniences do not create a necessity at severance. Thus, as a matter of law—no disputed facts on necessity—the court granted dismissal (declaratory judgment) for defendants on the first cause.

Prescriptive Easement: The complaint alleged hostile, open, notorious, continuous and uninterrupted use of the strip for ingress/egress for over 10 years. The 1982 license was limited to parking and did not grant permission to use the strip for ingress/egress. No record evidence showed the split-rail fence ever barred plaintiff’s use for a full 10-year span. The factual questions regarding implied permission and fence removal precluded summary dismissal of the second cause.

Preliminary Injunction & Undertaking: Plaintiff demonstrated a likelihood of success on the prescriptive‐easement claim, irreparable harm if barred from access (emergency vehicles), and a favorable balance of equities. The court’s $50,000 undertaking was rationally related to defendants’ potential rental‐loss damages.

3. Impact

This decision provides clear guidance on:

• How courts treat partial, express licenses when assessing hostile use for prescriptive easements.
• When and how a cause of action for declaratory relief may be dismissed under CPLR 3211(a) in favor of a defendant.
• The strict requirements for establishing an easement by necessity at the moment of severance.

Future litigants will note that a license confined to parking does not necessarily bar a later prescriptive claim for other uses, and that alternative public‐road access defeats a necessity claim as a matter of law.

Complex Concepts Simplified

• Easement by Necessity: Requires that, at the time the land was divided, the dominant parcel absolutely needed passage over the servient parcel to reach a public road. Mere convenience or later developments do not suffice.
• Prescriptive Easement: Arises when someone uses another’s land in a manner that is hostile (i.e., without permission), open, notorious, continuous, and uninterrupted for at least 10 years.
• CPLR 3211(a) Motion to Dismiss: Under subparagraph (1), documentary evidence must conclusively destroy a claim; under subparagraph (7), the court must accept all pleaded facts and only dismiss when no legal theory applies.
• Declaratory Judgment Conversion: If a declaratory relief cause is properly pleaded but lacks factual dispute, a dismissal motion may be turned into a judgment for the defendant.
• Preliminary Injunction Factors: Likelihood of success, irreparable injury, and a favorable balance of equities; a security bond (undertaking) must correlate to likely damages if the injunction is wrongfully granted.

Conclusion

572 Walt Whitman Rd. Holdings v. Whitman Capital refines two important aspects of real-property practice. First, it reconfirms that post-severance inconveniences cannot create an easement by necessity where alternative access existed at division. Second, it demonstrates that a limited license (parking only) does not automatically extinguish an independent, adverse use for ingress/egress established over decades. Moreover, the decision clarifies the mechanics of CPLR 3211(a) in declaratory judgment actions, guiding trial courts on when to convert a dismissal motion into a merits decision in defendants’ favor. Practitioners litigating easement claims or considering pre-answer motions will find this precedent indispensable.