| Sadowski v Taylor |
| 2008 NY Slip Op 09136 [56 AD3d 991] |
| November 20, 2008 |
| Appellate Division, Third Department |
| Dorothy A. Sadowski, Individually and as Trustee of a Trust DatedJanuary 25, 1989, Respondent, v Judith A. Taylor et al., Appellants. |
—[*1] Carl G. Dworkin, Albany, for respondent.
Mercure, J. Appeal from an order of the Supreme Court (Williams, J.), entered February 8,2007 in Saratoga County, which, among other things, denied defendants' motion for partialsummary judgment.
This appeal involves two adjoining parcels of real property located in the Town of Malta,Saratoga County, between Route 67 and the shore of Little Round Lake. The properties wereacquired by John Sadowski and Effie Sadowski in the early 1940s and, for approximately 20years, the Sadowskis brought in fill to create a beach (hereinafter the disputed land). After 1965,no additional fill was added other than for maintenance purposes, although a brook emptying intothe lake evidently deposited fill by accretion. The Sadowskis also operated a cottage colony onthe westerly parcel (hereinafter the Sadowski parcel), as well as a commercial business providingpatrons access to Little Round Lake for recreational purposes on both parcels.
In 1975, the parcels were conveyed to siblings James Sadowski and Eva Stomski, as jointtenants, and Stomski built a log home on the eastern parcel (hereinafter the Taylor parcel), whereshe thereafter resided with her daughter, defendant Judith A. Taylor. The house had a basementgarage facing west and a driveway running in a westerly direction to a stone drive on theSadowski parcel. In 1985, James Sadowski and Stomski deeded the Taylor parcel to Stomski[*2]and the Sadowski parcel to James Sadowski, using the metesand bounds description contained in original deeds from the 1940s. The 1985 conveyance endedthe unity of title that the parties' family held over the two parcels. James Sadowski subsequentlyconveyed the Sadowski parcel to himself, as trustee of a trust he created, and Stomski conveyedthe Taylor parcel to Judith Taylor, who then conveyed the parcel to herself and her husband,including in the deed an easement over the stone drive on the Sadowski parcel and ownership ofthe disputed land.
In response, James Sadowski—who has since passed away and been replaced asplaintiff by his daughter—commenced this action, pursuant to RPAPL article 15, seeking adeclaration as to the title of the disputed land and that defendants do not hold an easement overthe stone drive on the Sadowski parcel. As relevant here, defendants thereafter moved for partialsummary judgment on the issues of their entitlement to the disputed land and the easement.Supreme Court denied the motion, and defendants now appeal.
We affirm. Initially, we reject defendants' argument that Supreme Court erred in denyingtheir motion for partial summary judgment on the issue of whether they have an easement byimplication or prescription over the stone drive on the Sadowski parcel. Turning first todefendants' assertion that they are entitled to an implied easement, " '[i]n order to establish aneasement by implication from pre-existing use upon severance of title, three elements must bepresent: (1) unity and subsequent separation of title, (2) the claimed easement must have, prior toseparation, been so long continued and obvious or manifest as to show that it was meant to bepermanent, and (3) the use must be necessary for the beneficial enjoyment of the land retained' "(Beretz v Diehl, 302 AD2d 808, 810 [2003], quoting Abbott v Herring, 97 AD2d870, 870 [1983], affd 62 NY2d 1028 [1984]). As defendants assert with respect to thethird element, "[t]he necessity required for an implied easement based upon preexisting use isonly reasonable necessity, in contrast to the absolute necessity required to establish an impliedeasement by necessity" (Four S Realty Co. v Dynko, 210 AD2d 622, 623 [1994]; see Mobile Motivations, Inc. vLenches, 26 AD3d 568, 570-571 [2006]). Nevertheless, under either theory, mereconvenience is not sufficient to establish necessity (see Asche v Land & Bldg. Known as 64-29 232nd St., 12 AD3d386, 387 [2004]; Four S Realty Co. v Dynko, 210 AD2d at 623-624).
Here, in support of their claim that an easement over the stone drive is reasonably necessaryfor the beneficial enjoyment of their property, defendants proffered only a personal affidavitindicating that it is not feasible to build a driveway on the Taylor parcel because the grade is toosteep and the driveway would interfere with their septic system and dry well. Defendantsadmitted, however, that building a driveway "could be done, but [it would be] very difficult" andnow concede that the septic system is located elsewhere on the parcel. Given the absence of anydocumentation regarding the location of the dry well or septic system, or any expert evaluation ofcost and difficulty of constructing a driveway on the Taylor parcel, we agree with Supreme Courtthat defendants did not "tender[ ] sufficient evidence to eliminate [all] material issues of fact" onthis issue (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).Moreover, even if defendants had met their initial burden, plaintiff presented evidence that use ofthe driveway was discontinued approximately five years prior to severance of title whendefendants converted their garage to living space and began parking along Route 67, creating anissue of fact regarding whether the driveway was meant to be permanent (see Beretz vDiehl, 302 AD2d at 810).
We similarly reject defendants' argument that they established, as a matter of law, their [*3]entitlement to a prescriptive easement over the Sadowski parcel."[T]he proponent of a prescriptive easement claim bears the burden of proving, by clear andconvincing evidence, hostile, open, notorious and continuous use over the other's land for theprescriptive period" (Wechsler v New York State Dept. of Envtl. Conservation, 193AD2d 856, 859 [1993], lv denied 82 NY2d 656 [1993]; see Allen v Mastrianni, 2 AD3d1023, 1024 [2003]; Gorman v Hess, 301 AD2d 683, 685 [2003]; see also Di Leov Pecksto Holding Corp., 304 NY 505, 510-512 [1952]). Proof of the remaining elementsgenerally gives rise to a presumption of hostility and shifts the burden of proving permissive useto the servient landholder. "[T]he proponent is not accorded the benefit of the presumption,"however, when the user and landowner are, among other things, related by blood, "and must[instead] present affirmative facts to support the conclusion that his or her use was under a claimof right and adverse to the interests of the landowner" (Wechsler v New York State Dept. ofEnvtl. Conservation, 193 AD2d at 860; see McNeill v Shutts, 258 AD2d 695, 696[1999]; see also Weir v Gibbs, 46AD3d 1192, 1193 [2007]). Inasmuch as the parties are related by blood and defendants havepresented no evidence of adverse use during the prescriptive period, they did not meet their initialburden of demonstrating entitlement to summary judgment on their prescriptive easement claim(see McNeill v Shutts, 258 AD2d at 696-697; Wechsler v New York State Dept. ofEnvtl. Conservation, 193 AD2d at 860).
Finally, we conclude that Supreme Court properly denied defendants' motion for summaryjudgment on the issue of whether they hold title to the disputed land by deed or adversepossession. In our view, questions of fact permeate the parties' claims regarding ownership of thedisputed land. It is unclear, for example, how much of the disputed land was created byman-made fill—such that title would not have vested in the parties' predecessors and couldnot have passed by deed—and how much was due to natural accretion, with the parties'predecessors thereby obtaining ownership of the land that was previously underwater (seeTown of Oyster Bay v Commander Oil Corp., 96 NY2d 566, 573 [2001]; Matter of Townof Hempstead v Little, 22 NY2d 432, 437, 439 [1968]; Sage v Mayor of City ofN.Y., 154 NY 61, 83 [1897]; see generally White v Knickerbocker Ice Co., 254 NY152, 156-157 [1930]). Further, the parties put forth no evidence regarding, among other things,whether Little Round Lake is navigable, in which case the accreted foreshore is under thepresumptive ownership of the state, subject to a public trust and not susceptible to adversepossession (see Mohawk Val. Ski Club v Town of Duanesburg, 304 AD2d 881, 882-884[2003]; Rodrigues v Catskill Revitalization Corp., 302 AD2d 762, 764 [2003];Hanigan v State of New York, 213 AD2d 80, 84-85 [1995]; Smith v People, 9AD2d 205, 207 [1959]; 7 Warren's Weed, New York Real Property § 77.02 [3] [5th ed]),or whether the foreshore is owned by some other party. Moreover, even assuming ownership ofthe disputed land could be obtained through adverse possession and that defendants have shownthat their use of the land was not merely a permissive familial accommodation, we note thatactivities such as building fire pits, planting trees and adding fill may be deemed nonadverse(see generally RPAPL 522, 543; Walling v Przybylo, 7 NY3d 228, 230-233 [2006]; Robinson v Robinson, 34 AD3d975, 977-978 [2006], lv denied 8 NY3d 805 [2007]).
In short, given defendants' failure to eliminate all material issues of fact from the case,summary judgment in their favor is unwarranted here.
Cardona, P.J., Peters, Carpinello and Kavanagh, JJ., concur. Ordered that the order isaffirmed, with costs.