| Estate Ct., LLC v Schnall |
| 2008 NY Slip Op 02541 [49 AD3d 1076] |
| March 20, 2008 |
| Appellate Division, Third Department |
| Estate Court, LLC, Appellant, v Paul Schnall et al.,Respondents. |
—[*1] Stephen L. Oppenheim, New York City, for respondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Sackett, J.), entered December 19,2006 in Sullivan County, which, among other things, denied plaintiff's motion for partialsummary judgment.
In February 2005, plaintiff commenced this action pursuant to RPAPL article 15, seeking torelocate an appurtenant easement by prescription that crosses its property in the Town of Bethel,Sullivan County. Defendants were granted the easement in a 1999 judgment of Supreme Court(Kane, J.). Plaintiff has since obtained approval to build 19 townhouses and related facilities onthe premises. It now asserts that the prescriptive easement frustrates its development of both theproperty and an adjacent lake for recreational purposes. In addition to relocating the easement,plaintiff seeks to install a security gate across that portion of the easement that abuts a statehighway and to compel defendants to repair and maintain the natural condition of the prescriptiveeasement.
Defendants answered and asserted counterclaims seeking, among other things, a judgmentdirecting plaintiff to repair damage it allegedly caused to the easement and enforcement of theinjunction contained in the 1999 judgment. Plaintiff subsequently moved for partial summaryjudgment regarding its right to relocate the easement and install a gate, as well as dismissal ofdefendants' counterclaims. Defendants cross-moved for partial summary judgment, [*2]seeking a declaration that plaintiff may not unilaterally relocate theeasement or interfere with it, and dismissal of the claim to compel them to repair or maintain theeasement. Supreme Court partially granted defendants' cross motion to the extent of precludingunilateral relocation of the easement and dismissing plaintiff's third cause of action to compeldefendants to repair and maintain the prescriptive easement, and partially granted plaintiff'smotion to the extent of permitting installation of a gate. Plaintiff appeals and we now affirm.
As plaintiff asserts, it is well settled that "express easements are defined by the intent, orobject, of the parties . . . [Therefore,] where the intention in granting an easement isto afford only a right of ingress and egress, it is the right of passage, and not any right in aphysical passageway itself, that is granted to the easement holder" (Lewis v Young, 92NY2d 443, 449 [1998] [citations omitted]). Inasmuch as "enjoyment of an undefinedright of ingress and egress over the land of another does not require any fixed occupancy of thelandowner's premises" (id. at 451 [emphasis added]), a servient landowner may, undercertain circumstances, unilaterally relocate an undefined right of way that has been granted to theeasement holder (see Chekijian vMans, 34 AD3d 1029, 1031 [2006], lv denied 8 NY3d 806 [2007]; Green v Blum, 13 AD3d 1037,1037-1038 [2004]).
By contrast, "[o]nce an easement is definitively located, by grant or by use, its locationcannot be changed by either party unilaterally" (Clayton v Whitton, 233 AD2d 828, 829[1996]). To be sure, "[m]ere use of a particular path in accordance with an explicit right to doso"—i.e., use pursuant to an express easement granting an undefinedright-of-way—"is neither hostile nor adverse. Thus, continued usage of that same pathdoes not in and of itself fix an otherwise undefined location so as to enlarge the interest of theeasement holder or reduce the interest of the landowner" (Lewis v Young, 92 NY2d at452-453). Where, however, there is no express grant and a fixed, prescriptive easement isobtained instead by use that is "adverse, open and notorious, continuous and uninterrupted for theprescriptive period" (Di Leo v Pecksto Holding Corp., 304 NY 505, 512 [1952]; seeMihaly v Mahoney, 126 AD2d 791, 792 [1987]), this Court has held that a servientlandowner is not free to unilaterally designate the particular path that may be used for ingress andegress (see Clayton v Whitton, 233 AD2d at 829).
Here, it is undisputed that defendants obtained an easement of ingress and egress byprescription. Contrary to plaintiff's argument, the judgment awarding that easement expresslydefined it by reference to a survey map showing the precise path of the easement in detail,including exact distances and courses and with reference to monuments, adjacent properties,highwater lines and other landmarks (see Lewis v Young, 92 NY2d at 446). Plaintiff'spredecessor in interest was not granted any right to relocate or alter the easement in the prioraction; rather, the judgment provides that plaintiff's predecessors "are hereby permanentlyenjoined from interfering with [defendants'] use and enjoyment of their said easement byprescription." As such, defendants' easement cannot be equated to an undefined easement createdby express grant and plaintiff is not entitled to unilaterally relocate that easement (see Claytonv Whitton, 233 AD2d at 829; cf. Lewis v Young, 92 NY2d at 453-454; Chekijianv Mans, 34 AD3d at 1031-1032; Green v Blum, 13 AD3d at 1038 [2004]; Marekv Woodcock, 277 AD2d 864, 865-866 [2000], lv dismissed 96 NY2d 792 [2001]).
Finally, inasmuch as all users of an easement "must share ratably in the cost of themaintenance and repair" of the easement absent express agreement otherwise (Allen vGreenberg, 21 Misc 2d 763, 769 [1959]; see Green Harbour Homeowners' Assn. v G.H.Dev. & Constr., 307 AD2d 465, 466-467 [2003], lv dismissed 100 NY2d 640[2003]; Cohen v Banks, [*3]169 Misc 2d 374, 377[1996]), Supreme Court properly dismissed plaintiff's claim that defendants are solelyresponsible for maintenance and repair of the easement. We have considered plaintiff's remainingarguments and conclude that they are lacking in merit.
Peters, Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed, withcosts.