| Schulz v Dattero |
| 2013 NY Slip Op 01815 [104 AD3d 831] |
| March 20, 2013 |
| Appellate Division, Second Department |
| John Schulz et al., Appellants, v Anthony Datteroet al., Respondents, et al., Defendants. |
—[*1] Lawrence, Worden, Rainis & Bard, P.C., Melville, N.Y. (Paul E. Hennings ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, waste and injury toreal property pursuant to RPAPL 861, trespass, conversion, and private nuisance, theplaintiffs appeal, as limited by their brief, (1) from so much of an order of the SupremeCourt, Suffolk County (Spinner, J.), dated April 1, 2011, as denied those branches oftheir motion which were for summary judgment on the first, second, fourth, and fifthcauses of action insofar as asserted against the defendants Anthony Dattero and NancyDattero and dismissing the counterclaim of the defendants Anthony Dattero and NancyDattero for attorneys' fees, and granted those branches of the cross motion of thedefendants Anthony Dattero and Nancy Dattero which were for summary judgmentdismissing the first, second, fourth, and fifth causes of action insofar as asserted againstthem, and (2) from so much of an order of the same court dated February 16, 2012, as,upon reargument, in effect, vacated so much of the order dated April 1, 2011, as grantedthat branch of their motion which was for summary judgment on the third cause of actioninsofar as asserted against the defendants Anthony Dattero and Nancy Dattero and deniedthose branches of the cross motion of the defendants Anthony Dattero and Nancy Datterowhich were for summary judgment dismissing the third cause of action insofar asasserted against them and for summary judgment on their counterclaim for attorneys'fees, thereupon denied that branch of the plaintiffs' motion and granted those branches ofthe cross motion of the defendants Anthony Dattero and Nancy Dattero, and, in effect,granted that branch of the cross motion of the defendants Anthony Dattero and NancyDattero which was for summary judgment declaring that they are entitled to easementrights set forth in an unrecorded agreement between those defendants and the plaintiffs'predecessor-in-interest.
Ordered that the order dated April 1, 2011, is affirmed insofar as appealed from,without costs or disbursements; and it is further,
Ordered that the order dated February 16, 2012, is modified, on the law, by deletingthe provisions thereof, upon reargument, granting those branches of the cross motion ofthe defendants Anthony Dattero and Nancy Dattero which were for summary judgmenton their counterclaim for attorneys' fees and for a declaratory judgment, and substitutingtherefor a provision upon reargument, adhering to the original determination denyingthose branches of the cross motion; as so modified, the order dated February 16, 2012, isaffirmed insofar as appealed from, without [*2]costs ordisbursements.
In 1998 Stephen Fellman (hereinafter Fellman) and the defendants Anthony Datteroand Nancy Dattero executed a Declaration Creating Access Easement (hereinafter theDeclaration), which granted the Datteros an easement, approximately 10 feet wide and568 feet long, over the northern-most portion of Fellman's property (hereinafter the strip)to access a dock located on Fellman's property, and extending into the Connetquot River.At or about the same time, Fellman and the Datteros entered into a separate writtenagreement (hereinafter the Agreement) which, inter alia, provided that the Datteros wereentitled to certain rights in their use of the easement, including one boat slip on the dock.Shortly thereafter the Declaration was recorded, but the Agreement was never recorded.
In 2003 Fellman sold his property to the plaintiffs, John Schulz and Patricia Fellman,Fellman's former wife. In 2005 Anthony Dattero submitted an application to the Town ofIslip for a land-clearing permit. The application stated that a permit was sought to clearthe 10-foot width and much of the length of the strip, including the removal of eight"medium to large trees" within the strip. The land-clearing permit was rejected in theabsence of the signatures of the landowners, i.e., the plaintiffs. Subsequently, theplaintiffs signed the application. The Town then issued a land-clearing permit, but on thescheduled day of the clearing a dispute arose between the Datteros and the plaintiffsregarding which trees were to be removed. The plaintiffs called the police in an attemptto stop the Datteros from clearing the strip, but a Town official present at the sceneauthorized the clearing, and the Datteros' contractor proceeded to clear the strip.
The plaintiffs commenced this action against, among others, the Datteros, to recoverdamages, inter alia, for breach of the contract, waste and injury to real property pursuantto RPAPL 861, conversion, private nuisance, and trespass. They also sought injunctiverelief enjoining the Datteros from conducting activities in the strip pursuant to theAgreement. The Datteros asserted a counterclaim for attorneys' fees.
The plaintiffs moved, inter alia, for summary judgment on their claims against theDatteros, and the Datteros cross-moved for summary judgment dismissing the complaintinsofar as asserted against them, on their counterclaim for attorneys' fees, and for ajudgment declaring that they are entitled to certain easement rights. The Supreme Courtgranted that branch of the plaintiffs' motion which was for summary judgment on thetrespass cause of action, granted, inter alia, those branches of the Datteros' cross motionwhich were for summary judgment dismissing the causes of action to recover damagesfor breach of contract, conversion, and private nuisance, and pursuant to RPAPL 861,insofar as asserted against them, and otherwise denied the motion and the cross motion.Thereafter, the Datteros moved for leave to reargue certain portions of their cross motion.The Supreme Court granted reargument and, upon reargument, inter alia, granted thatbranch of the Datteros' cross motion which was for summary judgment dismissing thetrespass cause of action insofar as asserted against them and that branch of their crossmotion which was for summary judgment on their counterclaim for attorneys' fees andfor a declaratory judgment.
Pursuant to RPAPL 861 (1), a property owner may maintain an action for damagesagainst any person who, without the consent of the owner, removes or causes to beremoved trees on the owner's property (see Zablow v DiSavino, 22 AD3d 748, 749 [2005]). "Torecover damages based on the tort of private nuisance, a plaintiff must establish aninterference with his or her right to use and enjoy land, substantial in nature, intentionalor negligent in origin, unreasonable in character, and caused by the defendant's conduct"(Kaplan v Incorporated Vil. ofLynbrook, 12 AD3d 410, 412 [2004]; see Copart Indus. v ConsolidatedEdison Co. of N.Y., 41 NY2d 564, 569 [1977]). "In order to establish a cause ofaction to recover damages for conversion, the plaintiff must show legal ownership or animmediate superior right of possession to a specific identifiable thing and must show thatthe defendant exercised an unauthorized dominion over the thing in question. . . to the exclusion of the plaintiff's rights" (Scott v Fields, 85 AD3d756, 757 [2011] [internal quotation marks omitted]).
Here, in signing the land clearing permit application, the plaintiffs consented to theclearing of the full 10-foot width and much of the length of the strip and to the removalof eight "medium to large" trees within the easement. The Datteros submitted evidenceestablishing, prima [*3]facie, that they did not exceed thescope of the plaintiffs' consent and that no more than eight medium to large trees wereremoved from the easement area. In opposition, the plaintiffs failed to raise a triable issueof fact as to whether the Datteros exceeded the scope of the plaintiffs' consent orremoved more than eight medium to large trees. Accordingly, the Supreme Court, byorder dated April 1, 2011, properly granted those branches of the Datteros' cross motionwhich were for summary judgment dismissing the causes of action to recover damagesfor breach of the contract, conversion, private nuisance, and pursuant to RPAPL 861,insofar as asserted against them.
Upon reargument, the Supreme Court properly granted that branch of the Datteros'cross motion which was to dismiss the trespass cause of action insofar as asserted againstthem. "Entering upon the land of another without permission, even if innocently or bymistake, constitutes trespass" (Curwin v Verizon Communications [LEC], 35 AD3d 645,645 [2006]). The Datteros established, prima facie, that, prior to clearing the strip, theywalked on the plaintiffs' property with the plaintiffs' permission in order to access thedock given the impassable condition of the strip. In opposition, the plaintiffs failed toraise a triable issue of fact.
With respect to their amended counterclaim for a judgment declaring that they areentitled to the easement rights set forth in the Agreement, the Datteros contended that theplaintiffs were on inquiry notice as to the existence of the Agreement. "[A]n unrecordedconveyance of an interest in real property is deemed void as against a subsequent goodfaith purchaser for value who acquires his interest without actual or constructive noticeof the prior conveyance" (Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 16-17[1979]; see Real Property Law § 291). However, " '[w]here a purchaserhas knowledge of any fact, sufficient to put him on inquiry as to the existence of someright or title in conflict with that he is about to purchase, he is presumed either to havemade the inquiry, and ascertained the extent of such prior right, or to have been guilty ofa degree of negligence equally fatal to his claim, to be considered as a bona fidepurchaser' " (Maiorano vGarson, 65 AD3d 1300, 1303 [2009], quoting Williamson v Brown, 15NY 354, 362 [1857]; seeCongregation Beth Medrosh of Monsey, Inc. v Rolling Acres Chestnut Ridge, LLC,101 AD3d 797 [2012]). "This presumption, however, is a mere inference of fact, andmay be repelled by proof that the purchaser failed to discover the prior right,notwithstanding the exercise of proper diligence on his part" (Williamson vBrown, 15 NY at 362).
Here, in cross-moving for summary judgment for a declaratory judgment, theDatteros failed to eliminate questions of fact as to whether the plaintiffs were on inquirynotice of the Agreement or, assuming the plaintiffs were on inquiry notice, whether theplaintiffs exercised proper diligence in inquiring about the Datteros' easement rights andyet failed to discover the existence of the Agreement (see T & V Constr., Inc. v Calapai, 90 AD3d 908, 908-909[2011]). Accordingly, upon reargument, the Supreme Court erred in awarding theDatteros summary judgment declaring that they are entitled to the easement rights setforth in the Agreement. As the Datteros correctly suggest, however, and as the plaintiffJohn Schulz acknowledged in his deposition testimony, the language of the Declarationwas "vague and unclear" as to the nature and extent of the Datteros right to use the stripand the dock (Perillo v Credendino, 264 AD2d 473, 473 [1999]). Thus, in theevent the Agreement is found to be void as against the plaintiffs due to lack of notice, theDatteros' rights as to the strip and dock pursuant to the Declaration should be ascertainedby looking to the other surrounding circumstances tending to show the intent of Fellmanand the Datteros, and should "include any reasonable use to which [the easement] may bedevoted, provided the use is lawful and is one contemplated by the grant" (Phillips vJacobsen, 117 AD2d 785, 786 [1986]; see Havel v Goldman, 95 AD3d 1174, 1175 [2012]; Sassouni v Krim, 68 AD3d968 [2009]; Mandia v King Lbr. & Plywood Co., 179 AD2d 150, 158[1992]; Hedberg v Brew, 266 AD2d 432 [1999]; Monahan v Hampton PointAssn., 264 AD2d 764 [1999]).
Since a triable issue of fact remains as to the extent of the parties' easement rights, anaward of attorneys' fees to the Datteros as the prevailing party, pursuant to theDeclaration, is premature. Accordingly, upon reargument, the Supreme Court shouldhave adhered to its original determination denying that branch of the Datteros' crossmotion which was for summary judgment on the counterclaim for attorneys' fees.
The plaintiffs' remaining contention is without merit. Skelos, J.P., Balkin, Austin andSgroi, JJ., concur. [Prior Case History: 2011 NY Slip Op 30783(U).]