Phillips v Iadarola

2011 NY Slip Op 01398

Decided on February 24, 2011

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 24, 2011
510476



Calendar Date: January 6, 2011
Before: Mercure, J.P., Rose, Lahtinen, Malone Jr. and Stein, JJ.


McCabe & Mack, L.L.P., Poughkeepsie (Sean M.
Kemp of counsel), for appellants.
Jacobwitz & Gubits, L.L.P., Walden (J. Benjamin
Gailey of counsel), for respondents.
Malone Jr., J.
Appeal from an order of the Supreme Court (Connolly, J.),
entered November 19, 2009 in Ulster County, which, among
other things, denied plaintiffs' cross motion for partial summary
judgment declaring that the installation of certain underground
utility lines by defendant Lorrie Place was unlawful.
Defendant Lorrie Place owns a landlocked parcel of property
that enjoys a 20-foot-wide deeded easement for a right-of-way
over plaintiffs' respective adjoining parcels in order to access a
public road. After Place installed below-surface utility lines in
the right-of-way as necessary to complete the construction of a
house that she was building on her property, plaintiffs
commenced this action against Place, defendant Carmine Iadarola and
defendant Marada Electric, Inc., seeking, among other things, to
enjoin them from continuing with such activity, which they
claimed exceeded the scope of the easement
fnref='1'>The right-of-way exists over two parcels of property, one owned by plaintiffs Arlene Phillips and Allen Phillips Jr., and the other owned by plaintiff Hudson Valley Wine Village, Inc. The Phillipses and Hudson Valley each commenced separate actions against Place, Iadarola — who formerly had an ownership interest in Place's parcel — and Marada Electric, the company that installed the utility lines. Those two actions were consolidated by the order from which this appeal was taken, although the consolidation is not a disputed issue.. Upon the parties' cross motions for partial [*2]summary
judgment, Supreme Court granted the motion of Iadarola and Place
(hereinafter collectively referred to as defendants) and denied
plaintiffs' cross motion. Plaintiffs appeal.
"An instrument creating an estate or interest in real property
must be construed according to the intent of the parties, insofar
as their intent can be determined by the language of the grant"
(Hudson Val. Cablevision Corp. v 202 Devs., 185 AD2d 917,
920 [1992] [citation omitted]; see Real Property Law § 240 [3];
Albright v Davey, 68 AD3d 1490, 1491 [2009], lv denied 14
NY3d 708 [2010]). Here, the original grantors conveyed by
deed a landlocked parcel to defendants' predecessor in interest,
together with a "20 foot right of way . . . to Blue Point Road."
Plaintiffs contend that the plain language of the deed limits
defendants' use of the easement to ingress and egress only and,
accordingly, defendants have no right to install underground
utility lines.
It is only "where the easement expressly exists [solely] for the
right of ingress and egress" (Hopper v Friery, 260 AD2d 964,
966 [1999] [emphasis added]) that the rights under that
easement do not include the right to install underground utility lines
(see U.S. Cablevision v Theodoreu, 192 AD2d 835, 837 [1993]),
and the plain language of the deed does not establish an
unambiguous intent by the grantors to limit the rights under the
easement. Where the purpose of an easement is to provide a means of
ingress and egress, in the absence of any "restrictions or
qualifications [on the use] . . ., any reasonable lawful use within the
contemplation of the grant is permissible" (Albright v Davey, 68
AD3d at 1492 [internal quotation marks and citation omitted];
see Hudson Val. Cablevision Corp. v 202 Devs., 185 AD2d at
920). Here, the undisputed evidence establishes that Place's
chain of title contains conveyances among family members and
the language of the easement grant is very broad. It is certainly
reasonable to conclude that the original grantors contemplated
that their daughter would use the parcel as a building lot, which
could not be accomplished without installing utilities to and
from the parcel. "The fact that subsequent owners of the land are
unrelated cannot alter the grant of the easement as made"
(Morgan v Bolsan Realty Corp., 48 AD2d 331, 333 [1975], appeal
dismissed 37 NY2d 921 [1975]). Under the circumstances
presented here, Place's installation of necessary underground utilities
constitutes a "reasonable lawful use within the contemplation of
the grant" (Albright v Davey, 68 AD3d at 1492 [internal
quotation marks and citation omitted]).
Plaintiffs' remaining contentions have been considered and
found to be unpersuasive.
Mercure, J.P., Rose, Lahtinen and Stein, JJ., concur.

MEMORANDUM AND ORDER


ORDERED that the order is affirmed, with costs.