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Free Parking
by Ron Davis

Patrons of a New York restaurant can continue to park in a designated section of an adjacent shopping center despite objections of the center’s new owners.

The restaurant and shopping center are located in Westchester County, and the parking of restaurant customers at the center became a controversial issue almost as soon as the new owners bought the property.

The previous owners of the center had, however, granted the parking so long as it was restricted to 12 allotted spaces. That grant was in the form of an easement, which also allowed access to a driveway for restaurant-patron usage, as well as snow-removal service when needed. In return, the restaurant owner had agreed to pay the center’s owners for the benefits provided.

The new owners of the shopping center knew of the parking-related grant when they bought the property. But they nevertheless objected, especially when the restaurant owner fell behind in paying for the parking privilege.

The restaurant owner eventually sued, asking the courts to force the new owners of the shopping center to honor the easement. In response, the center’s owners countersued, contending that the restaurant owner had breached the contract by failing to pay the sums due under the parking agreement.

A New York state court supported the position of the restaurant owner, noting that the parking spaces are subject to an easement that allows for parking and snow-removal service in the 12 designated spaces. Stated the judge, “When the parties to an agreement set forth the terms of that agreement in a clear and complete document, the agreement should be enforced according to its terms.”

The shopping center’s owners appealed that ruling on grounds that the failure to pay for the parking privileges negated the easement.

A New York appellate court agreed with the lower court, explaining, “A portion of the shopping center property is subject to an easement benefitting the adjacent real property owned by the restaurant.” But, the judges added, “ The [shopping center’s owners] established its entitlement to judgment [regarding payment for parking privileges] as a matter of law by demonstrating that the original agreement provided that it was entitled to receive the annual payments in consideration for their maintenance of and provision of snow-removal services with respect to the 12 parking spaces.” (Step-Murphy, LLC v. B&B Brothers Real Estate Corp., 2009 WL 708665 [N.Y.A.D. 2 Dept.])

Decision: March 2009
Published: March 2009



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