| McColgan v Brewer |
| 2011 NY Slip Op 03954 [84 AD3d 1573] |
| May 12, 2011 |
| Appellate Division, Third Department |
| John McColgan, Respondent, v Donald Brewer et al.,Defendants, and Philip Kirschner, Appellant. |
—[*1]
Stein, J. Appeal from an order of the Supreme Court (Zwack, J.), entered July 2, 2010 inUlster County, which, among other things, granted plaintiff's cross motion for partial summaryjudgment on the issue of whether certain real property is benefitted by a particular right-of-way.
In 1953, a parcel of real property in the Town of Rosendale, Ulster County owned by EdithKelley was divided by the construction of the New York State Thruway. As a result, the portionof Kelley's parcel east of the Thruway, together with several neighboring properties, becamelandlocked. Rose Klepeis, the owner of the property immediately south of Kelley's landlockedproperty, entered into a series of right-of-way agreements with her northerly neighbors, includingKelley, to gain access to State Route 32 via a private road, known as Alberts Lane.[FN1]In 2005, Kelley's daughter, who had inherited the property upon Kelley's death, sold both [*2]the westerly and easterly portions of Kelley's original parcel toplaintiff.
Before he purchased the subject property, plaintiff retained the services of defendants RotheEngineering & Construction and Donald Brewer to conduct a survey of the property. Plaintiffalso retained defendant Philip Kirschner to determine if the easterly portion of the property hadaccess to State Route 32 via Alberts Lane. Plaintiff obtained insurance from defendant ChicagoTitle Insurance Company through its local agent, Abbacy Abstract, in order to insure against anylosses that he would incur if the landlocked portion of the property did not have access to thepublic roadway. Plaintiff thereafter successfully had the zoning of the property amended so thathe could develop and use it as a pipe yard for his underground utility pipe business. Plaintiff wassubsequently informed that the right-of-way over Alberts Lane did not benefit the landlockedportion of his property and filed a claim under the insurance policy, which Chicago Title rejected.
Plaintiff commenced this action for negligence and breach of contract against Brewer and forlegal malpractice against Kirschner based on their alleged representations that the landlockedportion of the property was benefitted by the existing right-of-way. Plaintiff subsequentlyamended his complaint to add causes of action for breach of contract against Rothe Engineeringand Chicago Title, as well as a fraud claim against Chicago Title. Chicago Title moved forsummary judgment seeking dismissal of plaintiff's complaint on the ground that the right-of-wayagreements entered into by Klepeis did benefit plaintiff's landlocked property. Plaintiffcross-moved for partial summary judgment for a determination that his landlocked property wasnot benefitted by the right-of-way. Kirschner then moved to preclude certain expert testimonyidentified in plaintiff's supplemental expert disclosure and plaintiff cross-moved for costs andsanctions against Kirschner for filing a frivolous motion. Supreme Court denied Chicago Title'smotion for summary judgment, granted plaintiff's cross motion for partial summary judgment anddenied the cross motions relating to the expert disclosure. Kirschner now appeals.
Kirschner's contention that, when viewed together, the subject right-of-way agreementsevince an intent to benefit plaintiff's property is unavailing. A party cannot reserve an easementover another's property in favor of a third party who is not a party to the agreement (seeMatter of Estate of Thomson v Wade, 69 NY2d 570, 573-574 [1987]; compareClearmont Prop., LLC v Eisner, 58 AD3d 1052, 1054-1055 [2009]; Matter of Bauer v County ofTompkins, 57 AD3d 1151, 1152 [2008]). Here, Klepeis is the only grantee in theagreements and Kelley's involvement is limited to that of a grantor of a right-of-way over herown property. As neither Kelley nor her successors in interest were grantees with respect to theright-of-way agreements with the other landowners, such agreements do not benefit thelandlocked portion of plaintiff's property as a matter of law (see generally Matter of Estate ofThomson v Wade, 69 NY2d at 573-574; Clearmont Prop., LLC v Eisner, 58 AD3d at1054; Matter of Bauer v County of Tompkins, [*3]57AD3d at 1152).[FN2]
Furthermore, when the construction of the Thruway caused the subject property to becomelandlocked, the surrounding land was owned by different owners. As there was no unity andsubsequent severance of title, plaintiff's landlocked property cannot benefit from an easement bynecessity or an easement by implication (see Lew Beach Co. v Carlson, 77 AD3d 1127, 1129-1130 [2010];Sadowski v Taylor, 56 AD3d991, 993 [2008]; compare ThomasGang, Inc. v State of New York, 19 AD3d 861, 862 [2005]). Nor can plaintiff, whoacquired the property in 2005, demonstrate use of the right-of-way for the requisite 10-yearperiod in order to establish an easement by prescription (see Lew Beach Co. v Carlson,77 AD3d at 1128; Sadowski v Taylor, 56 AD3d at 994; Weir v Gibbs, 46 AD3d 1192,1193 [2007]), as there is no evidence that any of plaintiff's predecessors in interest used theright-of-way. Finally, plaintiff's landlocked property was not part of a common scheme orsubdivision necessary to show that the right-of-way was intended to benefit it (see Steinmannv Silverman, 14 NY2d 243, 246 [1964]; Palma v Mastroianni, 276 AD2d 894,894-895 [2000]; Heim v Conroy, 211 AD2d 868, 870 [1995]). Accordingly, SupremeCourt properly determined that the landlocked portion of plaintiff's property was not benefittedby the existing right-of-way as a matter of law and granted plaintiff's cross motion for partialsummary judgment.
Kirschner also contends that Supreme Court should have precluded plaintiff from offeringproof from certain experts identified in his supplemental expert disclosure because, among otherthings, plaintiff failed to obtain the court's prior approval to supplement his original expertdisclosure[FN3]and failed to provide sufficiently detailed information regarding the expert proof (seeCPLR 3101 [d] [1] [i]). The expert disclosure requirements are "intended to provide timelydisclosure of expert witness information between parties for the purpose of adequate andthorough trial preparation" (Silverberg v Community Gen. Hosp. of Sullivan County, 290AD2d 788, 788 [2002]). Although failure to comply with those requirements may warrant thesanction of preclusion if there is prejudice and a willful failure to disclose (see Harrington v Palmer [*4]Mobile Homes, Inc., 71 AD3d 1274, 1275 [2010]; Mead v Dr. Rajadhyax' Dental Group,34 AD3d 1139, 1140 [2006]; Silverberg v Community Gen. Hosp. of SullivanCounty, 290 AD2d at 788-789), trial courts are "vested with broad discretion in addressingexpert disclosure issues" (Gross vSandow, 5 AD3d 901, 902 [2004], lv dismissed and denied 3 NY3d 735 [2004];see Harrington v Palmer Mobile Homes, Inc., 71 AD3d at 1275; Ennis-Short v Ostapeck, 68 AD3d1399, 1401 [2009]; Adams vBack, 64 AD3d 1070, 1072-1073 [2009]).
Here, in response to Kirschner's expert disclosure demand, plaintiff initially disclosed severalexperts, including Kenneth Ayers, whom plaintiff expected to testify about the lack of aright-of-way to his landlocked property. Thereafter, plaintiff submitted a second expert disclosurewhich indicated, among other things, that Ayers was also expected to testify about the standardof care applicable to Kirschner. Following his receipt of the supplemental disclosure, Kirschner'scounsel sent a letter to plaintiff's counsel noting his objections to such disclosure and, thereafter,filed the motion to preclude plaintiff's expert testimony. At the time the supplemental expertdisclosure was served, a note of issue had not yet been filed. Moreover, Kirschner failed todemonstrate that plaintiff's actions were willful or that he was prejudiced thereby. Under thesecircumstances, we find no abuse of Supreme Court's discretion in denying Kirschner's motion topreclude.
Kirschner's remaining contentions have been considered and are without merit.
Mercure, J.P., Rose, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs. [Prior Case History: 28 Misc 3d 1221(A), 2010 NY Slip Op 51421(U).]
Footnote 1: The right-of-way agreementsprovided, in relevant part, that the owner of the property "does hereby grant, release and conveyunto [Klepeis] a perpetual and unobstructed right-of-way and easement 50 feet in width over saidpremises[, which] shall at all times hereafter be kept open and unobstructed as a highway for theuse and benefit of the properties owned by the parties hereto, as well as other parties, and theowners and occupants thereof, as a means of ingress and egress, by foot or vehicle."
Footnote 2: Kirschner's reliance on thelanguage in the agreements providing that the rights-of-way granted therein are "for the use andbenefit of the properties owned by the parties [thereto], as well as other parties"(emphasis added) is misplaced. Such commonly used language is merely an indication that theright-of-way is not for the exclusive use of the grantee insofar as the grantor has either alreadyconveyed rights-of-way over the same lands by some other instrument or is reserving the right todo so in the future.
Footnote 3: Kirschner argues that suchapproval is required by the Third Judicial District expert disclosure rule, which provides, inpertinent part, as follows: "[A] party . . . shall serve its response to an expertdemand . . . on or before the filing of the Note of Issue . . . Anyamended or supplemental expert disclosure shall be allowed only with the permission of the[c]ourt. Unless the [c]ourt directs otherwise, a party who fails to comply with this rule isprecluded from offering the testimony and opinions of the expert for whom a timely response hasnot been given."