| Prego v Gutchess |
| 2009 NY Slip Op 03287 [61 AD3d 1394] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| Michael A. Prego et al., Appellants, v David Gutchess, Defendant,and Toan T. Helmer, Respondent. |
—[*1] David A. Loftus, Skaneateles, for defendant-respondent.
Appeal from an order of the Supreme Court, Onondaga County (John C. Cherundolo, A.J.),entered August 1, 2008. The order, insofar as appealed from, denied the motion of plaintiffs forsummary judgment and granted the cross motion of defendant Toan T. Helmer for leave toamend her answer.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking, inter alia, a determination that theyhave an easement over or contiguous to a parcel owned by defendant David Gutchess and aseparate parcel owned by Toan T. Helmer (defendant). As limited by their brief, plaintiffs appealfrom an order insofar as it denied that part of their motion for summary judgment on thecomplaint and granted the cross motion of defendant for leave to amend her answer. We affirm.
With respect to plaintiffs' motion, plaintiffs failed to meet their initial burden of establishingthat the relevant deeds included the easement at issue (see O'Brien v Bocchino, 13 AD3d 1055, 1056 [2004]). "Generally,'a deed conveyed by a common grantor to a dominant landowner does not form part ofthe chain of title to the servient land retained by the common grantor' . . . Thus, anowner of a servient estate will be bound only if the encumbrance is recorded in his or her chainof title" (Russell v Perrone, 301 AD2d 835, 836 [2003], amended 1 AD3d 789[2003]). Furthermore, "[i]t is not enough if the encumbrance is recorded in the chain of title ofthe dominant estate; it must be found in the servient estate's chain of title for thatlandowner to be bound" (Puchalski v Wedemeyer, 185 AD2d 563, 565 [1992]). Here,plaintiffs failed to establish that the purported easement was recorded in the chains of title ofdefendants' servient estates and that the easement in plaintiffs' deed accurately reflected theoriginal easement as set forth in the deed that created the easement.
Contrary to the further contention of plaintiffs, Supreme Court did not abuse its discretion in[*2]granting the cross motion of defendant for leave to amend heranswer. "Generally, [l]eave to amend a pleading should be freely granted in the absence ofprejudice to the nonmoving party where the amendment is not patently lacking in merit" (Anderson v Nottingham Vil. Homeowner'sAssn., Inc., 37 AD3d 1195, 1198 [2007], amended on rearg 41 AD3d 1324[2007] [internal quotation marks omitted]; see CPLR 3025 [b]). The evidence submittedby defendant in support of the cross motion established that her proposed additional defense thatthe easement was extinguished by adverse possession was not patently without merit (seegenerally Spiegel v Ferraro, 73 NY2d 622, 625-626 [1989]; Koudellou v Sakalis, 29 AD3d640, 641 [2006]; Zeledon v MacGillivray, 263 AD2d 904, 905 [1999]), andplaintiffs failed to identify any prejudice arising from the proposed amendment.Present—Martoche, J.P., Smith, Centra, Fahey and Pine, JJ.