Todd v. Krolick

96 A.D.2d 695, 466 N.Y.S.2d 788, 1983 N.Y. App. Div. LEXIS 19251

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 28, 1983
• Status: Published

Opinions

— Appeal from an order of the Supreme Court at Special Term (Crangle, J.), entered October 18,1982 in Schenectady County, which granted plaintiff’s motion for a preliminary injunction and denied defendants’ cross motion to dismiss the complaint. Plaintiff is the operator of a business that provides laundry machines for use in apartment complexes pursuant to agreements under which the owners of the apartments receive a share of the revenues generated by the coin operated machines. On August 10, 1979, plaintiff entered into a written agreement with Monarch Associates, defendants’ predecessor in title, giving plaintiff a sole and exclusive right to install and maintain laundry machines in the apartment complex presently owned by defendants. The contract was for a period of 10 years and purported to be binding “on the heirs, successors and assigns of the parties and the rights hereunder shall not be disturbed or affected by foreclosure, acquisition, merger or any change of ownership”. In 1980, Monarch Associates, in lieu of foreclosure, transferred the property by deed to Marine Midland Bank. In February, 1981, the bank conveyed the property to defendants. During negotiations for the purchase of the property, defendants inquired about the laundry machines on the property and were advised by Marine Midland Bank that there was no existing agreement concerning any laundry machines located on the subject premises. In response to several written requests from defendants to remove the machines, plaintiff commenced this action seeking a permanent injunction preventing the removal of the machines during the term of its contract with Monarch Associates and, by order to show cause, moved for a preliminary injunction. Defendants opposed the motion and cross-moved to dismiss the complaint. Special Term granted plaintiff’s motion for a preliminary injunction and denied defendants’ cross motion. This appeal by defendants ensued.

* First, we unhesitatingly hold that the complaint fails to allege facts sufficient to establish a contract cause of action. Mutual assent is essential to the formation of a contract {Tri-City Renta-Car & Leasing Corp. v Vaillancourt, 33 AD2d 613). Here, we have a bilateral contract between plaintiff and Monarch Associates, not between plaintiff and defendants. Even though the subject contract purports to bind any successors to the property, it is clear that the assignee of rights under a, bilateral contract is not obligated to perform the duties under the contract unless he expressly assumes to do so {Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 402). Defendants have made no such assumption. Next, the contract between plaintiff and Monarch Associates was in the nature of a license rather than a lease or an easement {Bermann v Windale Props., 4 AD2d 746). The agreement did not give plaintiff exclusive possession and control of any definite space in the apartment complex, the only requirement being that tenants have access to the machines. Accordingly, defendants are not bound by the terms of the contract merely because they had knowledge of the agreement and may have accepted benefits thereunder (id.). While it is difficult to distinguish an easement from a license in real property, they are distinct in principle (see, generally, 17 NY Jur, Easements and Licenses, § 3, pp 254-256). An easement always implies an interest in the land in and over which it is to be enjoyed, whereas a license merely confers a personal privilege to do some act or acts on the land without possessing any interest therein. Further, since an easement creates an interest in land, it is normally created by grant or prescription (see 17 NY Jur, Easements and Licenses, § 14, pp 265-266). While the grant need not contain all the formalities of a deed, it must contain a description of the land that is to be subject to the easement with sufficient clarity to locate it with reasonable certainty (see 17 NY Jur, Easements and Licenses, § 29, p 275). Here, the contract between plaintiff and defendants’ predecessor in title did not purport to create any interest in plaintiff in the apartment complex. Instead, it merely conferred upon plaintiff the right or privilege to install laundry machines on the property and to service the same. Accordingly, we conclude that the agreement did no more than create a revocable license which was extinguished by the conveyance of the property to defendants. Plaintiff’s contention that defendants ratified the agreement by allowing the machines to remain on the premises for approximately one year without objection and accepting payments from plaintiff during that period is without merit. These allegations were set forth in an amended complaint attached to plaintiff’s affidavit in opposition to defendant’s subsequent motion to reargue Special Term’s order. An appeal can only bring up for review issues determined by the judgment or order being reviewed (see CPLR 5517). An issue not raised at Special Term may not be raised for the first time on appeal (Bankers Trust Co. of Albany v Martin, 51 AD2d 411, 414). Since we have concluded that defendants’ cross motion to dismiss the complaint should have been granted, we need not review Special Term’s exercise of discretion in granting plaintiff a preliminary injunction. Order reversed, on the law, with costs, cross motion granted, and complaint dismissed. Mahoney, P. J., Sweeney, Kane and Casey, JJ., concur.

Subsequent to the entry of the order defendants moved for reargument and requested the posting of a bond. The motion for reargument was denied and a $5,000 bond was required to be posted by plaintiff.