| Hush v Taylor |
| 2011 NY Slip Op 03935 [84 AD3d 1532] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Penelope L. Sullivan Hush et al., Respondents, v James E. Taylor etal., Appellants, et al., Defendants. |
—[*1] D'Arrigo & Cote, Liverpool (Mario D'Arrigo of counsel), for respondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Cerio, Jr., J.), entered June 11,2010 in Madison County, which, among other things, granted plaintiffs' motion for summaryjudgment declaring the existence of certain easements across the real property of defendantsJames E. Taylor and Carol A. Larrabee.
In the late 1930s, Carrie Bushnell inherited a 25-acre parcel located on Oneida Lake inMadison County. The property, known as Bushnell Farm, is bordered by the lake to the north andState Route 31 to the south. Bushnell subdivided the lakefront portion into 16 lots and, between1950 and 1955, she sold 14 of those lots. She retained two: a 60-foot-wide lot (hereinafterWestern ROW) located five lots from the western boundary of Bushnell Farm, and a50-foot-wide lot located two lots from the eastern border.
The lakefront lots are bordered to the south by a right-of-way known as White Haven Road(East-West). That road is bisected by another right-of-way known as White Haven Road(North-South), which runs south through the remainder of Bushnell Farm and connects withState Route 31. In the 1960s, Bushnell began to subdivide and sell off portions of Bushnell Farmlocated south of White Haven Road (East-West). The conveyances included easements over bothWhite Haven Roads, as well as an additional lakefront easement for ingress and egress to OneidaLake. Although the language describing the location of the additional easement varies, [*2]plaintiffs, who are the current owners of some of theselots,[FN1]claim that the easement runs over the Western ROW. It is undisputed that the Western ROW wasused for that purpose until 2006, at which time defendants James E. Taylor and Carol A.Larrabee (hereinafter collectively referred to as defendants) purchased that property as part of alarger parcel located south of White Haven Road (East-West) and impeded plaintiffs' use.
Plaintiffs commenced this action seeking, among other things, a declaration that they haveeither an express or a prescriptive easement for ingress and egress over the Western ROW, aswell as the right to construct, maintain and use a dock. In their answer, defendants conceded thatplaintiffs Mark Hibbard, Eileen Hibbard, Nancy Fellows and Linda Wig have the right to use theWestern ROW for ingress and egress,[FN2]but disputed the remaining claims. Plaintiffs moved for summary judgment on their claim of anexpress easement, and Supreme Court granted the motion, declaring that all plaintiffs have anexpress right-of-way and easement for ingress and egress over the Western ROW as well as theright to construct, maintain and use a dock. Defendants appeal, and we now affirm.
Defendants initially argue that Supreme Court decided plaintiffs' motion prematurely withoutallowing defendants sufficient time for discovery. However, defendants' failure to request leaveto conduct discovery renders this argument unpreserved for our review (see General Elec. Capital Corp. v HighgateManor Group, LLC, 69 AD3d 992, 993 [2010]). With respect to the merits, defendantsdo not dispute that plaintiffs possess an easement to Oneida Lake. Rather, they dispute thelocation of the easement and contend that summary judgment is improper because the languagegranting the easements is ambiguous.
"[T]he construction of an instrument conveying real property, including any easements setforth therein, is ordinarily a question of law for the court to determine" (Jordan v Vogel, 59 AD3d 919, 920[2009]; see Eliopoulous v Lake GeorgeLand Conservancy, Inc., 50 AD3d 1231, 1232 [2008]). Where the description of theconveyance is not specific, extrinsic evidence may be used to demonstrate the grantor's intent (see Albright v Davey, 68 AD3d1490, 1491 [2009], lv denied 14 NY3d 708 [2010]; Leaman v McNamee, 58AD3d 918, 920 [2009]). If that evidence is disputed or subject to more than one interpretation,summary judgment is inappropriate (see Jordan v Vogel, 59 AD3d at 920;Eliopoulous v Lake George Land Conservancy, 50 AD3d at 1232).
We turn first to the language granting lakefront easements to plaintiffs Penelope L. Hush andJames M. Hush, plaintiffs Peter Kilts and Sharon Kilts, and plaintiffs Dennis R. Loftus andConnie D. Loftus. That language conveys "the right to the use of a 60 foot right of way leadingfrom the westerly end of [White Haven Road (East-West)] on [the Bushnell] Tract to the southshore of Oneida Lake." Defendants contended that the term "westerly end" is ambiguous andcould be construed as referring to the westernmost 60-foot-wide lakefront lot, designated as lot 9on the map submitted by plaintiffs. In response, plaintiffs rely upon an affidavit of Donna [*3]Barnell, whose aunt and uncle owned lot 9 during the relevantperiod. Barnell's affidavit, which was unrebutted, established that by themid-1950s—several years before the Hush, Kilts and Loftus easements were originallycreated—lot 9 was improved by a cabin that would have restricted access to the lake.Barnell also submitted photographs depicting the cabin at that time. Furthermore, a 1964 aerialphotograph shows that the only undeveloped lot on the western end of White Haven Road(East-West) was the Western ROW. In view of that uncontroverted evidence, Supreme Courtproperly determined that the right-of-way at issue encumbers the Western ROW.
As to the claim of plaintiffs L. David Chizzonite and Rosemarie Chizzonite, Bushnelloriginally conveyed their parcel in 1971, including the following easements: "There is alsogranted the use of all rights of way on the Bushnell Tract leading from Route #31 to the southshore of Oneida Lake." The Western ROW having been an existing right-of-way before 1971, itis necessarily included in the conveyance. Likewise, an easement over the Western ROW wasincluded in the conveyance by Herman A. Bushnell and Shirley A. Bushnell to plaintiff BeverlyTorrey, which granted "the right to the use of the rights of way over and across the former CarrieW. Bushnell Farm, which said rights of way extend northerly from State Highway No. 31 andincluding a sixty (60') foot right of way leading to the south shore of Oneida Lake." Defendantshave submitted no proof regarding these conveyances that would raise material issues of factprecluding summary judgment.
Finally, we are unpersuaded by defendants' contention that Supreme Court improperlyexpanded the scope of certain plaintiffs' easements by including the right to construct, maintainand use a dock. The installation of a dock at the end of an easement of this type "is a reasonableuse incidental to the purpose of the easement" and is therefore permissible (Higgins vDouglas, 304 AD2d 1051, 1055 [2003]; see Monahan v Hampton Point Assn., 264AD2d 764 [1999]).
Defendants' remaining contentions have been considered and are either unpreserved orwithout merit.
Rose, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Plaintiff Beverly Torrey retainsonly a life estate in the parcel located at 2887 State Route 31, having conveyed the fee to her fourchildren, who are also plaintiffs in this matter.
Footnote 2: The Hibbard and Wig/Fellowseasement over the Western ROW was described by metes and bounds.