| Baiting Hollow Props., LLC v Knolls of Baiting Hollow, LLC |
| 2011 NY Slip Op 08105 [89 AD3d 776] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Baiting Hollow Properties, LLC, Respondent, v Knolls ofBaiting Hollow, LLC, Appellant. RTA Management, Inc., ProposedIntervenor-Appellant. |
—[*1] Joel Stolowitz, West Hampton, N.Y. (Victor Metsch of counsel), for respondent.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claimsto real property and for a judgment declaring that the plaintiff is the owner of certain realproperty free of an easement claimed by the defendant, the defendant appeals from so much of anorder of the Supreme Court, Suffolk County (Gazzillo, J.), dated April 30, 2010, as granted thosebranches of the plaintiff's motion which were for summary judgment on the first cause of actionto declare that the plaintiff is the lawful owner of the subject property free of the easementclaimed by the defendant, save for an easement by necessity for ingress to and egress from thedefendant's property, and for summary judgment on the issue of liability on the third cause ofaction alleging trespass, and denied the defendant's cross motion for summary judgment on itssecond counterclaim to reform the easement agreement to correct a scrivener's error and todeclare the easement, as reformed, to be a valid burden on the plaintiff's property in accordancewith its terms, and the proposed intervenor, RTA Management, Inc., appeals from the sameorder.
Ordered that the appeal by the proposed intervenor RTA Management, Inc., is dismissed asabandoned; and it is further;
Ordered that the order is reversed insofar as appealed from by the defendant, on the law,those branches of the plaintiff's motion which were for summary judgment on the first cause ofaction to declare that the plaintiff is the lawful owner of the subject property free of an easementclaimed by the defendant save for an easement by necessity for ingress and egress to thedefendant's [*2]property, and for summary judgment on the issueof liability on its third cause of action alleging trespass are denied, and the defendant's crossmotion for summary judgment on the second counterclaim to reform the easement agreement tocorrect a scrivener's error, and to declare the easement, as reformed, to be a valid burden on theplaintiff's property in accordance with its terms is granted; and it is further;
Ordered that one bill of costs is awarded to the defendant payable by the plaintiff.
The plaintiff made a prima facie showing of entitlement to judgment as a matter of law on itsfirst cause of action for a declaration that the plaintiff is the lawful owner of the subject propertyfree of an easement claimed by the defendant, save for an easement by necessity for ingress toand egress from the defendant's property, by establishing that the purported grantor named in therecorded easement and right-of-way agreement, the Knolls of Fox Hill Phase V Section A, neverhad title to either the dominant or the servient parcels (see Matter of Estate of Thomson vWade, 69 NY2d 570, 573-574 [1987]; Sachar v East 53 Realty, LLC, 63 AD3d 715 [2009]; BeachsideBungalow Preserv. Assn. of Far Rockaway v Oceanview Assoc., 301 AD2d 488, 489[2003]). Moreover, based on that showing that the easement and right-of-way agreement wasinvalid, and the undisputed showing that the defendant had entered onto the property in questionand performed certain excavation work, the plaintiff also made a prima facie showing ofentitlement to judgment as a matter of law on the issue of liability on the third cause of actionalleging trespass (see Curwin v VerizonCommunications [LEC], 35 AD3d 645 [2006]).
However, in opposition to the plaintiff's summary judgment motion, the defendant raised atriable issue of fact as to whether the failure to name the actual owner of the dominant andservient parcels, the Knolls of Fox Hill, Inc., as the grantor in the easement and right-of-wayagreement was a mutual mistake of the parties to that agreement, entitling the defendant toreformation of the agreement to evince the actual intent of the parties thereto. Accordingly, theSupreme Court should have denied the plaintiff's motion for summary judgment on the firstcause of action and on the issue of liability on its third cause of action alleging trespass.
The Supreme Court erred in denying the defendant's cross motion for summary judgment onits second counterclaim to reform the easement agreement to correct a scrivener's error, and todeclare the easement, as reformed, to be a valid burden on the plaintiff's property in accordancewith its terms. In support of the cross motion, the defendant established that the denomination ofthe grantor as the Knolls of Fox Hill Phase V Section A in the easement and right-of-wayagreement was a mistake, and that, in accordance with the intent of the parties, the agreementshould have named the grantor as the Knolls of Fox Hill, Inc., which owned the dominant andservient parcels (see Harris v Uhlendorf, 24 NY2d 463 [1969]). Moreover, the defendantfurther established that the plaintiff, prior to its acquisition of the servient parcel, had actualnotice of the easement and right-of-way agreement which had been recorded against the servientparcel and was excepted from its title insurance policy on the parcel (see Carla Realty Co. vCounty of Rockland, 222 AD2d 480 [1995]; Flaherty v Broadway Assoc. Ltd.Partnership, 171 AD2d 938 [1991]). The plaintiff failed to raise a triable issue of fact inresponse to the defendant's showing in support of its cross motion. Rivera, J.P., Florio, Dickersonand Lott, JJ., concur.