| Lew Beach Co. v Carlson |
| 2008 NY Slip Op 09690 [57 AD3d 1153] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mLew Beach Company, Respondent, v Susan L. Carlson et al.,Appellants, et al., Defendants. |
—[*1] Edward C. Cerny III, Summit, N.J., for Beaverkill Trout Club, Inc., appellant. Orseck Law Office, P.L.L.C., Liberty (Gerald B. Orseck of counsel), for respondent.
Kavanagh, J. Appeals from two orders of the County Court of Sullivan County (LaBuda, J.),entered August 17, 2007 and September 11, 2007, which, among other things, granted plaintiff'smotion for a preliminary injunction.
Plaintiff operates a hunting lodge on property located in the Town of Rockland, Sullivan County.Access to the lodge is gained by way of a dirt roadway, referred to as Old Hunter Road, which crossesthe properties of defendants Susan L. Carlson, Jeanne L. Smith, Douglas E. Loucks, Ross Loucks,Regan Ridge Hunting Club, Inc. and Beaverkill Trout Club, Inc. (hereinafter collectively referred to asdefendants). Alleging that it has a right to use Old Hunter Road to access its property, plaintiffcommenced this action claiming that it has an easement over defendants' properties that exists byprescription, necessity and implication. Also, plaintiff alleges that defendants have placed debris acrossthe roadway in an attempt to block its access to its lodge and, by order to show cause, sought atemporary restraining order and preliminary [*2]injunction prohibitingdefendants from interfering with its use of the roadway.[FN1]County Court issued the temporary restraining order and subsequently granted plaintiff's request for apreliminary injunction barring defendants from preventing or interfering with plaintiff's use of Old HunterRoad. Defendants now appeal.
We see no abuse of County Court's discretion in granting plaintiff's request for a preliminaryinjunction based on its claim that it had a prescriptive easement on the roadway that ran throughdefendants' properties.[FN2]To obtain a preliminary injunction, plaintiff was required to establish "the likelihood of ultimate successon the merits, irreparable injury and a balancing of equities in [its] favor" (Town of Elmira v Hutchison, 53 AD3d939, 940 [2008], quoting Ulster Home Care v Vacco, 255 AD2d 73, 76 [1999];see CPLR 6301; Nobu Next Door,LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; Doe v Axelrod, 73 NY2d748 [1988]; Morrison v Woolley, 45AD3d 953, 954 [2007]). To prevail on its claim that it has a prescriptive easement overdefendants' properties, plaintiff must establish through clear and convincing evidence that it enjoyeduninterrupted use of the roadway for a 10-year period and that its use for that entire period wasadverse, open and notorious (see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159[1996]; Goldstein v Jones, 32 AD3d577, 581 [2006], lv dismissed 8 NY3d 939 [2007]; J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d 548, 550 [2005]; Cole v Rothe, 18 AD3d 1058, 1058[2005]; Wechsler v People, 13 AD3d941, 944 [2004]). While there is no dispute that plaintiff and its predecessors in title have used thisroadway for more than 20 years, defendants claim that such use was with their permission and not as amatter of right or in any way adverse to defendants' property interest. In that regard, defendants pointto the fact that plaintiff offered to purchase the right to use this roadway immediately prior tocommencing this action. They also claim that plaintiff only acquired title to the property in 1999 and hasnot presented any evidence that the lodge's previous owner's use of the roadway was adverse ornotorious or in any way consistent with the existence of a prescriptive easement.
In response, plaintiff claims that the funds it offered defendants were to pay for repairs to culvertsand a bridge located on another parcel of property in the area, and that as part of this transaction, itsought an agreement from defendants that would have memorialized its existing right to use thisroadway. Plaintiff also argued that credible evidence was presented establishing [*3]that it has maintained locked gates along the road's perimeter, whichsupports its claim that its use of this roadway was open, notorious and without defendants' permission.Plaintiff also notes that allegations set forth in the second amended complaint claim that, since 1959, theroadway had been used by their predecessors in title in a manner hostile and adverse to defendants'interest. Taken as a whole, there is no doubt that questions of fact exist as to plaintiff's right to use thisroadway; however, the existence of these issues does not " 'preclude [the] court from exercising itsdiscretion in granting an injunction' " (Karabatos v Hagopian, 39 AD3d 930, 931 [2007], quoting Egan vNew York Care Plus Ins. Co., 266 AD2d 600, 601 [1999]). The fairness of thisdecision—designed to preserve the status quo—is made even more manifest bydefendants' promise that they will not prevent plaintiff or any of its members from using this roadwaywhile this action is pending.
Moreover, plaintiff has established that it can only gain access to its property by use of thisroadway and that, as a result, it would be irreparably harmed if a preliminary injunction is not grantedand that the equities weigh in its favor (see Town of Elmira v Hutchison, 53 AD3d at 940;Karabatos v Hagopian, 39 AD3d at 932). Given that the grant of a preliminary injunction atthis point in this action causes no harm to defendants, prevents irreparable injury to plaintiff and, asstated, preserves the status quo, County Court's orders should be affirmed (see Bonded Concrete, Inc. v Town ofSaugerties, 42 AD3d 852, 856 [2007]; Karabatos v Hagopian, 39 AD3d at931-932).
Because our decision does not result in a remittal of this action, we need not address defendants'claim that the matter should be assigned to a different judge, and defendants' remaining contentionshave been reviewed and found to be lacking in merit.[FN3]
Cardona, P.J., Mercure, Lahtinen and Kane, JJ., concur. Ordered that the orders are affirmed,with costs.
Footnote 1: At that time, plaintiff also sought toprevent defendants from interfering with plaintiff's use of Wagon Wheel Trail—a separate anddistinct road not referenced in either the complaint, amended complaint or second amended complaint.Nonetheless, County Court extended the temporary restraining order to include Wagon Wheel Trail,provided that plaintiff amended its complaint to include Wagon Wheel Trail. While defendants challengethe appropriateness of this action by County Court, the temporary restraining order as it applies toWagon Wheel Trail has since expired and plaintiff has withdrawn any claims with respect to it.
Footnote 2: County Court did not reach aconclusion as to plaintiff's claims regarding the existence of an easement by necessity and implicationand, given our finding, it is not necessary to address either of these claims.
Footnote 3: While defendants, in theirprecalendar statement, raised a challenge to the amount of the undertaking to be filed by plaintiff, theyhave not pursued that issue in their brief and have, as a result, abandoned it (see Antich vMcPartland, 293 AD2d 953, 953 n 1 [2002]).