                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 21, 2016                   520117
________________________________

MICHAEL E. STAMP, as President
   of the Schuyler County
   Chapter, NYSARC, Inc.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

301 FRANKLIN STREET CAFÉ,
   INC.,
                    Appellant.
________________________________


Calendar Date:   November 17, 2015

Before:   Lahtinen, J.P., Garry, Rose, Lynch and Devine, JJ.

                             __________


      Fitzsimmons Law Firm, Watkins Glen (Daniel J. Fitzsimmons
of counsel), for appellant.

      Sayles & Evans, Elmira (Megan K. Collins of counsel), for
respondent.

                             __________


Garry, J.

      Appeal from an order of the Supreme Court (O'Shea, J.),
entered July 22, 2014 in Schuyler County, which, among other
things, granted plaintiff's motion for summary judgment.

      The Schuyler County Chapter, NYSARC, Inc. (hereinafter
NYSARC) owns a parcel of land in the Village of Watkins Glen,
Schuyler County that abuts North Franklin Street on the east and
South Madison Avenue on the west. Defendant owns the lot
immediately adjoining NYSARC's parcel on the northern side.
There are buildings on each lot. The two buildings share a
central brick wall, which runs from west to east, and the
                              -2-                520117

parties' dispute concerns the use of that wall. The wall lies
close to the properties' common boundary line; a survey submitted
by NYSARC reveals that it is located on NYSARC's side of the
line. The brick wall forms the NYSARC building's northern wall.
The front of NYSARC's building abuts North Franklin Street, which
runs north and south. Defendant's building is set farther back
from North Franklin Street and, thus, there is an open area in
front of defendant's building, bounded on the south by the
exposed eastern end of the wall. The central portion of the wall
serves as a common wall between the two buildings. The back of
defendant's building abuts South Madison Street – which runs
generally parallel with North Franklin Street – and the wall
extends westerly to that street, forming the southern wall of
defendant's building. NYSARC's building does not extend to South
Madison Street and, thus, the western portion of the wall is also
exposed. A parking lot lies in the open area behind NYSARC's
building, bounded on the north by the exposed western part of the
wall.

      Defendant operates a restaurant in its building and uses
the open area adjoining North Franklin Street as an outdoor
dining space. To facilitate this use, and without obtaining
NYSARC's permission, defendant installed light fixtures and
utilities on the exposed eastern portion of the brick wall.
Defendant also placed a doorway in the western portion of the
wall, allegedly to serve as an emergency exit for the restaurant.
That doorway opens onto NYSARC's parking lot and can be accessed
only by crossing NYSARC's property. Plaintiff, the president of
NYSARC, commenced this action alleging, among other things, that
defendant trespassed on NYSARC's parcel by installing the
fixtures, utility lines and doorway on and/or in the wall.
Defendant's answer included a counterclaim seeking a declaration
that its actions were proper because the brick wall is a common
wall. Plaintiff moved for summary judgment and dismissal of the
counterclaim. Supreme Court granted plaintiff's motion and, as
pertinent here, ordered defendant to remove the fixtures and
utility lines from the eastern part of the wall. The court
enjoined defendant from using the doorway for regular entry and
exit but, citing public policy, declined to enjoin its use for
emergency purposes. Defendant appeals.
                              -3-                520117

      We first address the order that defendant remove the
utility lines and fixtures from the eastern portion of the wall.
Defendant concedes that the survey that plaintiff submitted in
support of its motion for summary judgment shows that the wall
lies wholly on NYSARC's property, but argues that defendant's
installation of the fixtures and utilities was nevertheless
proper because it is a party wall. "'A party wall is generally
described as a wall erected between two adjoining pieces of
property and used for the common advantage of both owners'" (Wade
v Village of Whitehall, 17 AD3d 813, 814 [2005], lv denied 5 NY3d
717 [2005], quoting 10-104 Warren's Weed, New York Real Property
§ 104.01 [2004]). Party walls are often located on the boundary
line between parcels, in which case the portion of the wall on
each property belongs to that parcel's owner, subject to an
easement in the other building's owner for its support (see
Sakele Bros. v Safdie, 302 AD2d 20, 25 [2002]). A party wall,
however, may also "belong[] entirely to one of the adjoining
owners, but [be] subject to an easement or right in the other to
have it maintained as a dividing wall between the two tenements"
(Wade v Village of Whitehall, 17 AD3d at 814 [internal quotation
marks and citation omitted]).

      Here, defendant's actions were beyond the scope of a party
wall easement; the fixtures and utilities that defendant placed
on the exposed eastern portion of the wall neither provided
support to defendant's building nor contributed in any way to the
maintenance of a dividing wall between the buildings. Instead,
they were installed solely for defendant's "mere convenience or
advantage" in operating its restaurant (357 E. 76th St. Corp. v
Knickerbocker Ice Co., 263 NY 63, 66 [1933]; see 441 E. 57th St.,
LLC v 447 E. 57th St. Corp., 34 AD3d 378, 378 [2006], lv denied 8
NY3d 934 [2007]). As the exposed eastern portion of the wall is
located solely on NYSARC's property, the right to use it for such
matters of commerce and convenience belongs only to NYSARC,
whether or not any part of the wall is subject to an easement for
the support of defendant's building (see Sakele Bros. v Safdie,
302 AD2d at 21; compare Lei Chen Fan v New York SMSA Ltd.
Partnership, 94 AD3d 620, 621 [2012]).

      Defendant's attempt to establish the existence of issues of
fact as to whether it acquired title to the brick wall by adverse
                              -4-                520117

possession is unavailing. The evidence that defendant offered of
the parties' placement of shelves, decorations, fire
extinguishers and other such items on the wall was limited to the
interior portions of the parties' respective buildings – that is,
areas as to which no challenge to the parties' respective
ownership rights has been raised. Defendant offered no proof
that it or its predecessors in title have ever used or possessed
the exposed eastern portion of the wall on the outside of
NYSARC's building in a fashion that was "hostile and under a
claim of right, actual, open and notorious, exclusive and
continuous" (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159
[1996] [internal quotation marks and citation omitted]; see
Robbins v Schiff, 106 AD3d 1215, 1215-1216 [2013]). Defendant
likewise failed to establish issues of fact as to whether the
location of the boundary line had been determined by the doctrine
of practical location. Defendant offered no evidence that the
parties had agreed upon or acquiesced in a "clear demarcation" of
the boundary line (McMahon v Thornton, 69 AD3d 1157, 1160 [2010])
that differed from the boundary shown on the survey, or that such
a boundary was "definitely and equally known, understood and
settled" (Robert v Shaul, 62 AD3d 1127, 1128 [2009] [internal
quotation marks and citations omitted]) for the requisite
statutory period, all of which are necessary elements to support
such a claim (see Kennedy v Nimons, 121 AD3d 1229, 1232 [2014]).

      Further, we find no error in Supreme Court's determination
that defendant's use of the doorway in the exposed western
portion of the brick wall for other than emergency purposes
without permission constituted trespass as a matter of law.
Finally, contrary to defendant's assertion, Supreme Court's order
does not "award[] title" in the wall to NYSARC, and neither
determines nor implies that defendant does not own the southern
wall of its building. Instead, the court's decision was limited
to determining the extent of defendant's rights to use the
exposed eastern part of the wall for the installation of
utilities and fixtures and to cross NYSARC's property to use the
doorway.
                        -5-                  520117

Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.



ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
