| Foti v Noftsier |
| 2010 NY Slip Op 03656 [72 AD3d 1605] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Anthony Foti et al., Appellants, v Robert Romeyn Noftsier, Jr., etal., Respondents. |
—[*1] Capone Law Firm, LLP, Watertown (Andrew N. Capone of counsel), fordefendants-respondents Robert Romeyn Noftsier, Jr. and Alice Noftsier. Adam R. Matteson, Lowville, for defendants-respondents Bruce Tabolt, James Tabolt,Michael A. Tabolt and Christine A. Tabolt.
Appeal from an order of the Supreme Court, Lewis County (Joseph D. McGuire, J.), enteredFebruary 27, 2009 in an action pursuant to RPAPL article 15. The order denied the motion ofplaintiffs for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs own parcels of property that are bisected by a river, the parcelsnorth of which are separated from the nearest road by properties owned by the Noftsierdefendants. The parcel south of the river is separated from the nearest road by property ownedby the Tabolt defendants. We conclude that Supreme Court properly denied the motion ofplaintiffs for summary judgment, seeking a declaration granting them an easement by necessityover defendants' property, "with the exact location of the easement to be held in abeyancepending negotiations between the parties."
We note at the outset that, although it appears that the court concluded in its order thatplaintiffs' action is time-barred, the court did not in fact dismiss the action. With respect to theNoftsier defendants, they did not contend that the action was time-barred either in a pre-answermotion to dismiss the action or in their amended answer, and we therefore conclude that theywaived that defense (see CPLR 3211 [a] [5]; [e]). The Tabolt defendants, however,timely raised that defense in their amended answer. In view of the fact that all of the parties haveaddressed on appeal the issue whether [*2]the action istime-barred, we too address it in the interest of judicial economy. We conclude that there is anissue of fact whether the action is in fact time-barred, and thus that the court properly did notultimately dismiss the action against the Tabolt defendants on that ground. "[G]enerally, theperiod of limitations to be applied should depend upon the form of the remedy [sought] ratherthan the theory of liability" (Rahabi v Morrison, 81 AD2d 434, 439 [1981]; seeMatter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 676[1976]). Here, in their amended complaint plaintiffs seek, inter alia, relief in the form ofan injunction, i.e., to enjoin defendants from interfering with their use of their easements bynecessity, and "the equitable remedy of injunction . . . is governed by the six-yearperiod" of CPLR 213 (1) (Rahabi, 81 AD2d at 439; see Filby v Brooks, 105AD2d 826, 828 [1984], affd 66 NY2d 640 [1985]).
We reject plaintiffs' contention that there was a continuous interference on the part of theTabolt defendants, inasmuch as there was neither a physical obstruction of nor an interferencewith plaintiffs' alleged easement of necessity (cf. Filby, 105 AD2d at 828; see generally Bloomingdales, Inc. v NewYork City Tr. Auth., 13 NY3d 61, 64-65 [2009]; Castle Assoc. v Schwartz, 63AD2d 481, 488 [1978]). Here, plaintiffs had no cause of action for an injunction against theTabolt defendants until those defendants interfered with plaintiffs' alleged right to use theproperty of the Tabolt defendants for egress or ingress to their own parcels (see Filby,105 AD2d at 828; Castle Assoc., 63 AD2d at 488). In an affidavit submitted in supportof plaintiffs' motion, plaintiff Anthony Foti averred that plaintiffs demanded and were deniedaccess across the Tabolt defendants' property in the year 2000 and several times thereafter.Although plaintiffs' request for injunctive relief based on the year 2000 demand would be barredby the six-year statute of limitations (see CPLR 213 [1]; Rahabi, 81 AD2d at439), each subsequent demand and denial would give rise to a new cause of action for injunctiverelief (see Filby, 105 AD2d at 828). The record does not establish when plaintiffs madethose subsequent demands following the demand in the year 2000, and thus the issue whetherplaintiffs' action against the Tabolt defendants is time-barred cannot be determined as a matter oflaw on the record before us.
We further conclude that the court properly denied plaintiffs' motion against both theNoftsier and Tabolt defendants on the merits. In order to establish the existence of an easementby necessity, plaintiffs were required to prove by clear and convincing evidence "unity [and thesubsequent separation] of title and, further, that at the time of severance [in 1904] an easementover defendants' property was absolutely necessary in order to obtain access to plaintiff[s'] land"(Astwood v Bachinsky, 186 AD2d 949, 950 [1992]; see generally Palmer vPalmer, 150 NY 139, 146-147 [1896]). As plaintiffs correctly concede, the availability ofaccess to their property by a navigable waterway would defeat their entitlement to easements bynecessity (see McQuinn v Tantalo, 41 AD2d 575 [1973], lv denied 32 NY2d 610[1973]; Bauman v Wagner, 146 App Div 191, 196 [1911]). Inasmuch as the existenceand extent of an easement by necessity is determined based on the circumstances as they existedat the time of severance (see Wolfe v Belzer, 184 AD2d 691 [1992]; Robinson vByrne, 278 App Div 783 [1951]), we reject plaintiffs' contention that evidence that the riverin question was not navigable subsequent to the severance of the parcels in 1904 is relevant.Further, the 1893 property deeds submitted by plaintiffs in support of their motion provide nolegible facts from which to infer that the river in question was not in fact navigable in 1904.Present—Centra, J.P., Carni, Lindley, Green and Gorski, JJ.