| J.C. Tarr, Q.P.R.T. v Delsener |
| 2010 NY Slip Op 00928 [70 AD3d 774] |
| February 9, 2010 |
| Appellate Division, Second Department |
| J.C. Tarr, Q.P.R.T., Appellant-Respondent, v EllinDelsener, Respondent-Appellant, et al., Defendant. |
—[*1] Esseks, Hefter & Angel, LLP, Riverhead, N.Y. (Nica B. Strunk of counsel), forrespondent-appellant.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claimsto real property, the plaintiff appeals, as limited by its brief, from so much of an order of theSupreme Court, Suffolk County (Baisley, Jr., J.), dated July 3, 2008, as granted thosebranches of the motion of the defendant Ellin Delsener which were for summary judgmentdismissing so much of the complaint as sought certain injunctive relief and damages based onobstructions on, in, and along a 10-foot-wide right-of-way running across the property of thatdefendant and, in effect, declaring that an express easement that was established along the10-foot-wide right-of-way pursuant to a deed dated April 22, 1955, benefits only that portion ofits real property that was formerly designated as tax lot 16, that no easement was created byprescription over the 10-foot-wide right-of-way benefitting those portions of its property otherthan the portion formerly designated as tax lot 16, that the express easement does not extend anadditional two feet on either side of the 10-foot-wide right-of-way, that it does not have the rightto use the easement for vehicular traffic or for ingress to and egress from a public thoroughfareknown as Middle Lane, that the defendant Ellin Delsener has the right to maintain obstacles on,in, and along the easement which may interfere with its usage of the easement, including awooden split rail fence and speed bumps installed by that defendant, that it does not have theright to use the easement in the same manner and to the same extent that it did before thedefendant Ellin Delsener erected the wooden split rail fence, that the terms of the easement arenot binding upon that defendant, and that the defendant Ellin Delsener is entitled to maintain afence immediately outside the perimeter of the easement, and, sua sponte, directed the dismissal,as academic, of the complaint insofar as asserted against the defendant Berkley Bowen, and thedefendant Ellin Delsener cross-appeals, as limited by her brief, from so much of the same orderas denied that branch of her motion which was for summary judgment on her first and thirdcounterclaims and for certain injunctive relief.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as,sua sponte, directed the dismissal, as academic, of the complaint insofar as asserted against thedefendant Berkley Bowen is deemed to be an application for leave to appeal from that portion ofthe order, [*2]and leave to appeal is granted (see CPLR5701 [c]); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthose branches of the motion of the defendant Ellin Delsener which were for summary judgmentdismissing so much of the complaint as sought injunctive relief and damages based on anyfencing or speed bumps erected within the 10-foot-wide easement running across the property ofthat defendant, and substituting therefor a provision denying that branch of the motion, (2) bydeleting the provisions thereof granting those branches of the motion of the defendant EllinDelsener which were for summary judgment, in effect, declaring that the express easement thatwas established along the 10-foot-wide right-of-way pursuant to a deed dated April 22, 1955,benefits only that portion of the plaintiff's real property that was formerly designated as tax lot16, that no easement was created by prescription over the 10-foot-wide right-of-way benefittingthose portions of the plaintiff's property other than the portion formerly designated as tax lot 16,that the plaintiff does not have the right to use the easement for vehicular traffic or for ingress toand egress from Middle Lane, that the defendant Ellin Delsener has the right to maintainobstacles on, in, or along the easement that may interfere with the plaintiff's usage of theeasement, including the wooden split rail fence and speed bumps installed by that defendant, thatthe plaintiff does not have the right to use the easement in the same manner and to the sameextent that it did before the defendant Ellin Delsener erected the wooden split rail fence, and thatthe terms of the easement are not binding upon that defendant, and substituting thereforprovisions denying those branches of the motion, and (3) by deleting the provision thereofwhich, sua sponte, directed the dismissal, as academic, of the complaint insofar as assertedagainst the defendant Berkley Bowen; as so modified, the order is affirmed insofar as appealedand cross-appealed from, without costs or disbursements, and the matter is remitted to theSupreme Court, Suffolk County, for further proceedings and the entry thereafter of a judgment,inter alia, declaring that the defendant Ellin Delsener is entitled to maintain a fence immediatelyoutside the perimeter of the 10-foot-wide easement and that the express easement establishedpursuant to the deed dated April 22, 1955, does not extend an additional 2 feet on either side ofthe deeded 10-foot-wide right-of-way.
The plaintiff owns real property benefitted by an easement, created by a grant contained in adeed dated April 22, 1955 (hereinafter the deed), which provides ingress to and egress from itsproperty via a public thoroughfare known as Middle Lane in the Village of East Hampton. Theeasement is described in the deed as a "perpetual right-of-way," allowing passage "along aprivate roadway 10 feet wide." Consequently, a 10-foot-wide easement runs through propertyowned by the defendant Ellin Delsener. Pursuant to a separate deed, a 10-foot-wide easementalso runs through adjacent property formerly owned by the defendant Berkley Bowen. InSeptember 2000 the plaintiff began construction of a pool house and swimming pool on thesouthern portion of its property. During construction, large commercial trucks and othervehicles, rather than following the deeded right-of-way, traversed the northwestern corner ofDelsener's parcel of property and proceeded straight toward the southern portion of the plaintiff'sparcel of property. In September 2001 Delsener installed a wooden split rail fence that roughlyfollowed the metes and bounds description of the deeded right-of-way, blocking the straightroadway created by the construction vehicles. Delsener also installed speed bumps within thedeeded right-of-way.
The plaintiff subsequently commenced this action alleging, inter alia, that it is the owner ofreal property benefitted by a prescriptive easement, which provides it with an additional two feetof land on either side of the deeded 10-foot right-of-way. The plaintiff additionally sought ajudgment declaring, among other things, that Delsener did not have the right to maintainobstacles on, in, or along the deeded right-of-way which interfered in its use of the easement,including the split rail fence and speed bumps, and, in effect, that the 10-foot-wide right-of-wayprovided an easement that benefitted not only that portion of its property formerly designated astax lot 16 (hereinafter Lot 16), but also, either expressly or by prescription, benefitted theremainder of its property as well. The plaintiff also demanded certain injunctive relief anddamages. Delsener counterclaimed, inter alia, for a judgment declaring that the plaintiff wasentitled to use the subject easement only for ingress to and egress from Lot 16, and for aninjunction barring the plaintiff from using the easement for the benefit of any other portion of itsproperty. On a prior appeal, we determined, among other things, that the defendants wereentitled to summary judgment with respect to those portions of the complaint which alleged thatthe plaintiff had a prescriptive easement consisting of an additional two feet of land on eitherside of the deeded right-of-way, and remitted the matter for entry of [*3]a judgment declaring that the plaintiff did not have such aprescriptive easement (see J.C. Tarr,Q.P.R.T. v Delsener, 19 AD3d 548 [2005]).
Following the determination of the prior appeal, and after further discovery was conducted,Delsener moved for summary judgment dismissing the causes of action to recover damages andfor injunctive relief insofar as asserted against her, on her first and third counterclaims, and, ineffect, declaring, among other things, that the plaintiff is not entitled to the declaratory relief itseeks and that she is entitled to obstruct the easement in the manner described above. TheSupreme Court granted Delsener's motion for summary judgment except for those branches ofher motion which were for summary judgment on her first and third counterclaims, which itdenied.
In light of our determination on the prior appeal, the Supreme Court correctly granted thatbranch of Delsener's motion which was for summary judgment, in effect, declaring that theexpress easement created by the deed does not extend an additional two feet on either side of10-foot wide right-of-way. Further, the Supreme Court properly granted that branch ofDelsener's motion which was, in effect, for summary judgment declaring that she is entitled tomaintain a fence immediately outside of the perimeter of the subject easement. As the owner ofproperty burdened by an express easement for ingress and egress, Delsener is entitled to installfencing along the deeded right-of-way so long as such fencing does not impair the right ofpassage of the owner of the benefitted property (see Lewis v Young, 92 NY2d 443, 449[1998]; Guzzone v Brandariz, 57AD3d 481, 482 [2008]; Mastrangelo v Avello, 305 AD2d 557, 558 [2003]). Here,the deed creating the subject easement expressly grants the plaintiff a specifically definedright-of-way which is 10-feet wide and no wider and, thus, Delsener is permitted to fence off thisright-of-way, provided that her fencing does not narrow the right-of-way to a width of less than10 feet at any point.
However, Delsener failed to make a prima facie showing that she is entitled to judgment as amatter of law dismissing the portions of the complaint insofar as asserted against her which seekinjunctive relief and damages based upon the installation of speed bumps and any fencing whichmay have been installed within the deeded right-of-way, and, in effect, declaring that theplaintiff does not have the right to use the easement for vehicular traffic and for ingress to andegress from Middle Lane, that Delsener has the right to maintain obstacles on, in, or along theeasement that may interfere with the plaintiff's use of the easement, including the split rail fenceand speed bumps she installed, that the plaintiff does not have the right to use the easement inthe same manner and to the same extent that it did prior to the erection of the split rail fence, andthat the terms of the easement are not binding upon Delsener (see generally Zuckerman vCity of New York, 49 NY2d 557 [1980]). Delsener's own evidentiary submissions reveal theexistence of triable issues of fact relating, inter alia, to whether the split-rail fence she installednarrows the width of the right-of-way to less than 10 feet, and whether the fencing and the speedbumps she installed have unlawfully interfered with the plaintiff's right to utilize the easement.In view of Delsener's failure to meet her prima facie burden, the sufficiency of the plaintiff'sopposing papers need not be considered (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]).
Moreover, and contrary to Delsener's contention, our additional determination on the priorappeal that the plaintiff failed to establish, as a matter of law, that the split rail fence impaired itsuse and enjoyment of the right-of-way (see J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d at551) does not constitute the law of the case entitling her to judgment as a matter of lawdismissing the portions of the complaint which seek relief predicated upon the erection of thefence (see Meekins v Town ofRiverhead, 20 AD3d 399, 400 [2005]; Strouse v United Parcel Serv., 277 AD2d993, 994 [2000]; Medric Constr. v J.W. Mays, Inc., 230 AD2d 832, 833 [1996]).
Delsener also failed to make a prima facie showing that she is entitled to judgment as amatter of law on her first and third counterclaims declaring that the plaintiff is entitled to use thesubject easement only for ingress to and egress from Lot 16, and permanently enjoining theplaintiff from using the easement for the benefit of any other portion of its property. Delsener'sevidentiary submissions were insufficient to establish, as a matter of law, that the easement, ascreated by the deed, was intended to benefit only Lot 16, rather than the plaintiff's property as awhole, or that a prescriptive easement over the 10-foot-wide right-of-way was not createdbenefitting those portions of its property other than Lot 16 (see generally Zuckerman v Cityof New York, 49 NY2d 557 [1980]; see also Board of Mgrs. of Bayside Plaza [*4]Condominium v Mittman, 50 AD3d 718, 719 [2008]).
Finally, it was improper for the Supreme Court, sua sponte, to direct the dismissal, asacademic, of the complaint insofar as asserted against Bowen based solely upon the fact that hesold his property, which is also burdened by the subject easement, after the commencement ofthis action. The complaint has not been rendered academic insofar as asserted against Bowensince it seeks damages based upon Bowen's alleged past interference with the deededright-of-way. In any event, CPLR 1018 provides that "[u]pon any transfer of interest, the actionmay be continued by or against the original parties unless the court directs the person to whomthe interest is transferred to be substituted or joined in the action." Since the Supreme Court didnot direct that the new owners of Bowen's former property must be joined or substituted in theaction, Bowen remains a proper party (see Khanal v Sheldon, 55 AD3d 684, 686 [2008]; Buywise Holding, LLC v Harris, 31AD3d 681, 682 [2006]; Froehlich v Town of Huntington, 159 AD2d 606, 607[1990]). We note that, inasmuch as the complaint seeks damages against Bowen personally,joinder of the new owners rather than substitution would be appropriate.
The parties' remaining contentions are without merit.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Suffolk County, for further proceedings, and the entry thereafter of a judgment, inter alia,declaring that Delsener is entitled to maintain a fence immediately outside the perimeter of the10-foot-wide easement running across her property, and that the easement established by thedeed does not extend an additional two feet on either side of the deeded right-of-way (seeLanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962],cert denied 371 US 901 [1962]). Covello, J.P., Santucci, Miller and Eng, JJ., concur.[Prior Case History: 2004 NY Slip Op 30117(U).]