| Havel v Goldman |
| 2012 NY Slip Op 03982 [95 AD3d 1174] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Alfred J. Havel, Appellant, v Maurice Goldman et al.,Respondents. |
—[*1] Anthony B. Tohill, Riverhead, N.Y., for respondents.
In an action to recover damages for trespass and for injunctive relief, the plaintiff appealsfrom a judgment of the Supreme Court, Suffolk County (Tarantino, Jr., J.), dated September 14,2011, which, upon a decision of the same court dated July 5, 2011, made after a nonjury trial, isin favor of the defendants and against him dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff and the defendants are residential neighbors on Carmel Lane, a private road inHampton Bays. In an area near their residences, the plaintiff owns a 50-foot-wide strip of land(hereinafter the subject parcel) upon which Carmel Lane is situated. The middle of the subjectparcel is improved by an earth and stone surface approximately 12 feet wide, which is used as aroad. The defendants' lot, and those owned by the other homeowners on Carmel Lane, arebenefitted by an easement over the subject parcel for the purpose of ingress to and egress fromthose lots. Since 1982, the defendants have maintained an asphalt driveway on their property,which connects to the earth and stone road on the subject parcel. In 2008 the defendants borderedtheir driveway apron with several large rocks. Shortly thereafter, the plaintiff commenced thisaction, alleging that the rock borders constituted a continuing trespass, for which he was entitledto damages and injunctive relief. After a nonjury trial, the Supreme Court determined that theplaintiff had failed to establish his cause of action alleging trespass, and dismissed the complaint.The plaintiff appeals from the judgment, and we affirm.
Generally, "an action [alleging] trespass over the lands of one property owner may not bemaintained where the purported trespasser has acquired an easement of way over the land inquestion" (Kaplan v Incorporated Vil. ofLynbrook, 12 AD3d 410, 412 [2004] [internal quotation marks omitted]). Here, theplaintiff concedes that he owns the subject 50-foot-wide strip pursuant to a deed which reservesto the defendants' lot an easement for "ingress and egress." Where, as here, an easement isgranted in general terms, the extent of its use includes any reasonable use necessary andconvenient for the purpose for which it is created (see Missionary Socy. of SalesianCongregation v Evrotas, 256 NY 86, 90-91 [1931]; Somers v Shatz, 22 AD3d 565, 566-567 [2005]). "In the absence ofany countervailing factors, a reasonable use of an easement consisting of a 50-foot-wide strip ofland, [*2]with a terminus at a town road, is as a drivewayproviding access to property adjoining the easement" (Phillips v Jacobsen, 117 AD2d785, 786 [1986]; see Ickes v Buist,68 AD3d 823 [2009]). However, the holder of an access easement "cannot materiallyincrease the burden of the servient estate or impose new and additional burdens on the servientestate" (Solow v Liebman, 175 AD2d 120, 121 [1991]).
"In reviewing a determination made after a nonjury trial, this Court's power is as broad asthat of the trial court, and it may render the judgment it finds warranted by the facts, taking intoaccount that in a close case the trial court had the advantage of seeing and hearing the witnesses"(BRK Props., Inc. v Wagner ZivPlumbing & Heating Corp., 89 AD3d 883, 884 [2011]; see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Crawford v Village of Millbrook, 94AD3d 1036 [2012]).
Contrary to the plaintiff's contention, the evidence at trial warranted the conclusion that theerection of the rock borders along the defendants' driveway apron was a reasonable use of theiraccess easement and did not materially increase the burden on the servient estate. Accordingly,the Supreme Court properly dismissed the complaint. Angiolillo, J.P., Lott, Roman and Miller,JJ., concur. [Prior Case History: 32 Misc 3d 1211(A), 2011 NY Slip Op 51262(U).]