| Alexander v Oakley |
| 2012 NY Slip Op 03489 [95 AD3d 1391] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—Linda R. Alexander et al., Respondents, v Denise R.Oakley et al., Defendants and Cybele Richmond et al., Appellants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng of counsel), for City ofNew York, appellant. Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (Allyson M. Phillips ofcounsel), for Linda R. Alexander and another, respondents.
Malone Jr., J. Appeal from an order of the Supreme Court (Zwack, J.), entered July 22, 2010in Ulster County, which, among other things, granted plaintiffs' cross motions for partialsummary judgment.
Plaintiffs are the owners of real property located in the Town of Hurley, Ulster County.Defendants Cybele Richmond, City of New York and Wittenberg Sportsmen's Club (collectivelyreferred to as defendants) each own parcels of real property in the Town of Woodstock, UlsterCounty that are accessible via a right-of-way, commonly known as Alexander Road, that travels[*2]from a public highway over plaintiffs' property.[FN1]At a certain point, Alexander Road forks; at issue on this appeal is defendants' use of the left sideof that fork.
Plaintiffs commenced this action against defendants and others to establish the parties'respective rights with regard to Alexander Road and the left side of the fork. When Wittenbergmoved for summary judgment dismissing the complaint, plaintiffs opposed that motion andcross-moved for summary judgment against Wittenberg. Plaintiffs also cross-moved for partialsummary judgment on their second cause of action against Richmond and the City (regarding itsproperty in the Town of Woodstock)[FN2] and Richmond then cross-moved for summary judgment on her counterclaim against plaintiffs.After considering all of the evidence submitted in connection with the various motions, SupremeCourt determined that defendants did not possess any right to use Alexander Road or the left forkand, accordingly, denied the motions of Wittenberg and Richmond and granted plaintiffs' crossmotions for summary judgment. Richmond and the City appeal.
Initially, neither the City nor Richmond established that their predecessors in interestacquired a prescriptive easement over Alexander Road. Although the record contains numerousaffidavits of plaintiffs and various defendants, as well as others who have used the subjectright-of-way over the years, none supports a finding that the right-of-way was used in a hostilemanner for a period of 10 years by defendants or any of their predecessors in interest (see Nixon v Morris, 91 AD3d1170, 1171 [2012]; Lew Beach Co.v Carlson, 77 AD3d 1127, 1128 [2010]). On the other hand, plaintiffs' submissionsestablish that, historically, the use of Alexander Road was by permission in the spirit ofneighborly accommodation (see Chanerv Calarco, 77 AD3d 1217, 1218 [2010], lv denied 16 NY3d 707 [2011]).Inasmuch as the City and Richmond failed to offer proof tending to demonstrate that their use ofthe right-of-way was hostile for the requisite time period, plaintiffs were properly grantedsummary judgment on this claim (see Nixon v Morris, 91 AD3d at 1172).
Nor did the City establish that it was granted a valid easement by deed. Although a deed inthe City's chain of title does include a description of an easement, there is no basis in the recordfor the inclusion of such in that deed. Moreover, plaintiffs' title expert averred that, based uponhis review of the chain of title, neither the City nor Richmond has a valid written easement overplaintiffs' property. Inasmuch as the City did not submit any documentary or expert evidence torefute that conclusion, it failed to establish that it had a valid deeded easement (see Goldstein v Jones, 32 AD3d577, 580-581 [2006], lv dismissed 8 NY3d 939 [2007]). As for the City's alternatecontention that it is entitled to an easement by necessity, the record contains uncontrovertedproof establishing that the City's property is not contained within the same chain of title asplaintiffs' property, which defeats an essential element of the City's claim (see Lew Beach Co.v Carlson, 77 AD3d at 1129-1130).[*3]
Finally, contrary to Richmond's contentions, plaintiffs'causes of action are not barred by the doctrine of collateral estoppel based upon plaintiffs'involvement in prior litigation with defendants Karl W. Sjursen and Sheila L. Sjursen and othermembers of the Sjursen family regarding that family's use of Alexander Road.[FN3]In that case, Supreme Court (Carpinello, J.) found that the Sjursens and plaintiffs shared apredecessor in title, who had expressly reserved an easement over plaintiffs' property when hesubdivided it. As such, the court ultimately concluded that the Sjursens had a deeded easement touse both forks of Alexander Road. Inasmuch as the issues and parties in this case are notidentical to those involved in the prior litigation, and because plaintiffs demonstrated that theydid not have a full and fair opportunity to litigate the claims now presented, collateral estoppeldoes not bar plaintiffs' claims (seeRobinson v Robinson, 11 AD3d 853, 855 [2004]).
Peters, P.J., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: The City also owns a parcel ofproperty located in the Town of Hurley, Ulster County, which is likewise accessed by the Cityover Alexander Road.
Footnote 2: The issue of the City's use ofAlexander Road to access its property in the Town of Hurley was not subject to plaintiffs' motionfor partial summary judgment.
Footnote 3: The Sjursens own more than oneparcel, one of which is derived from common ownership with plaintiffs and is accessible via theright fork of Alexander Road and the other which was part of a subdivision that cannot be tracedto common ownership and is accessible via the left fork in the road. According to plaintiffs, thereis a motion pending before Supreme Court to vacate that part of the prior order that included theleft fork as part of the deeded easement.