| Menucha of Nyack, LLC v Fisher |
| 2013 NY Slip Op 07015 [110 AD3d 1037] |
| October 30, 2013 |
| Appellate Division, Second Department |
| Menucha of Nyack, LLC,Respondent-Appellant, v Gregory P. Fisher et al., Appellants-Respondents, etal., Defendant. |
—[*1] Savad Churgin, Nanuet, N.Y. (Joseph Churgin and Susan Cooper of counsel), forrespondent-appellant.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination ofclaims to real property and for a judgment declaring that the plaintiff's property is notsubject to easements in favor of the defendants Gregory P. Fisher, C. Robert Clemensen,and Doris Clemensen, for ingress to and egress from the Hudson River, (1) the plaintiffappeals, as limited by its notice of appeal and brief, from (a) so much of an order of theSupreme Court, Rockland County (Walsh II, J.), dated March 29, 2011, as denied thosebranches of its motion which were for summary judgment on so much of the first causeof action as sought a judgment declaring that its property is not encumbered by anyeasement in favor of the defendants C. Robert Clemensen and Doris Clemensen exceptan easement for an existing roadway, and for summary judgment on the issue of liabilityon the second, third, and fifth causes of action insofar as asserted against the defendantsGregory P. Fisher, C. Robert Clemensen, and Doris Clemensen, and granted thosebranches of the cross motion of the defendants Gregory P. Fisher, C. Robert Clemensen,and Doris Clemensen which were for summary judgment dismissing the complaintinsofar as asserted against the defendants C. Robert Clemensen and Doris Clemensen anddeclaring that the plaintiff's property is subject to the alleged easement in favor of thedefendants C. Robert Clemensen and Doris Clemensen, and (b) so much of an order ofthe same court dated September 19, 2011, as, upon reargument, in effect, adhered to theprior determination denying those branches of its motion which were for summaryjudgment on so much of the first cause of action as sought a judgment declaring that itsproperty is not encumbered by any easement in favor of the defendants C. RobertClemensen and Doris Clemensen except an easement for an existing roadway, and forsummary judgment on the issue of liability on the second, third, and fifth causes of actioninsofar as asserted against the defendants C. Robert Clemensen and Doris Clemensen,and (2) the defendants Gregory P. Fisher, C. Robert Clemensen, and Doris Clemensencross-appeal (a) from so much of the order dated March 29, 2011, as granted that branchof the plaintiff's motion which was for summary judgment on so much of the first causeof action as sought a judgment declaring that the plaintiff's property is not subject to thealleged easement in favor of the defendant Gregory P. Fisher, and, in effect, denied thatbranch of their cross motion which was for summary judgment dismissing the complaintinsofar as asserted against the defendant Gregory P. Fisher and declaring that theplaintiff's property is subject to the alleged [*2]easementin favor of the defendant Gregory P. Fisher, and (b), as limited by their brief, from somuch of the order dated September 19, 2011, as granted that branch of the plaintiff'smotion which was for leave to reargue its opposition to those branches of their crosswhich were for summary judgment dismissing the complaint insofar as asserted againstthe defendants C. Robert Clemensen and Doris Clemensen and declaring that theplaintiff's property is subject to the alleged easement in favor of those defendants, andupon reargument, denied those branches of their cross motion.
Ordered that the plaintiff's appeal from so much of the order dated March 29, 2011,as denied those branches of its motion which were for summary judgment on so much ofthe first cause of action as sought a judgment declaring that its property is notencumbered by any easement in favor of the defendants C. Robert Clemensen and DorisClemensen except an easement for an existing roadway, and for summary judgment onthe issue of liability on the second, third, and fifth causes of action insofar as assertedagainst the defendants Gregory P. Fisher, C. Robert Clemensen, and Doris Clemensen,and granted those branches of the cross motion of the defendants Gregory P. Fisher, C.Robert Clemensen, and Doris Clemensen which was for summary judgment dismissingthe complaint insofar as asserted against the defendants C. Robert Clemensen and DorisClemensen and declaring that the plaintiff's property is subject to the alleged easement infavor of the defendants C. Robert Clemensen and Doris Clemensen is dismissed, withoutcosts or disbursements, as that portion of the order was superseded by the order datedSeptember 19, 2011; and it is further,
Ordered that the order dated March 29, 2011, is affirmed insofar as reviewed,without costs or disbursements; and it is further,
Ordered that the order dated September 19, 2011, is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
The plaintiff and the defendants Gregory P. Fisher, C. Robert Clemensen, and DorisClemensen (hereinafter collectively the individual defendants) own neighboring lotslocated between North Broadway and the shore of the Hudson River in Upper Nyack,New York. The lot owned by the defendants C. Robert Clemensen and Doris Clemensenabuts North Broadway, and has no river frontage. The lot owned by the defendantGregory P. Fisher borders the Clemensen lot on the east, and has approximately 100 feetof river frontage. The lot owned by the plaintiff, Menucha of Nyack, LLC, borders theFisher lot on the north, and also has river frontage. The land narrows as it approaches theriver, and the plaintiff's lot extends further east than Fisher's lot.
The Clemensens' deed contains language granting them an easement over "thesoutherly ten feet" of a private driveway/roadway running along the southern boundaryline of their property, "together with the right of way of ingress and egress over thecontinuation of said private roadway as now or hereafter located to the Hudson River." Aprivate paved roadway runs from North Broadway toward the river along the southernboundary of the Clemensens' property, and then along the boundary line between Fisher'sproperty and the plaintiff's property, burdening a 10-foot strip on the southern portion ofFisher's property, and a 10 foot strip on the northern portion of the plaintiff's property.However, approximately 155 feet before reaching the shore, the existing roadway turnsinto a driveway that extends over Fisher's property to a neighboring lot to the north,while the boundary line between Fisher's property and the plaintiff's property continueseast, ending at the site of a former dock on the plaintiff's property. In 2004, Fisher'spredecessor-in-title extended this driveway east to within 30 feet of the river.
The individual defendants allege, inter alia, that the language in the Clemensen deedcreating an easement for access to the river entitles the Clemensens to extend the existingpaved roadway an additional 155 feet, first along the boundary line between Fisher'sproperty and the plaintiff's property, and then continuing east along the northern portionof the plaintiff's property to the shoreline. The plaintiff alleges, however, that theClemensens' easement over its property was conditioned on the continuation of theexisting roadway to the river, which never occurred. The plaintiff further contends thatany alleged easement along the boundary line to the river over the northeastern portion ofits property was extinguished by adverse possession because, in the early [*3]1970s, the plaintiff's predecessor-in-title built a seawallenclosing three sides of this area, and filled it in with dredged material to create abackyard. Although the deeds to both the Clemensen and Fisher lots additionally grantedthose properties an easement for access to and use of a dock that existed on the plaintiff'slot when the three properties were subdivided in 1950, a prior action by the Clemensensand Fisher against the plaintiff's predecessor-in-title resulted in a determination that thedock easement had been extinguished by its own terms when the subject dock ceased toexist. Contrary to the individual defendants' contention, the Supreme Court providentlyexercised its discretion in granting that branch of the plaintiff's motion which was forleave to reargue its opposition to those branches of their cross which were for summaryjudgment dismissing the complaint insofar as asserted against the defendants C. RobertClemensen and Doris Clemensen and declaring that the plaintiff's property is subject tothe alleged easement in favor of those defendants (see Colpan v Allied Cent. Ambulette, Inc., 97 AD3d 776,777 [2012]; Shields vKleiner, 93 AD3d 710, 711 [2012]; Fung v Uddin, 60 AD3d 992, 993 [2009]).
Further, upon reargument, the Supreme Court properly concluded, in effect, thatneither the plaintiff nor the Clemensens were entitled to summary judgment declaringtheir rights with respect to the alleged easement appurtenant to the Clemensen property.The extent of an easement claimed under a grant is generally determined by the languageused in the grant (see Starcic vHardy, 31 AD3d 630 [2006]; O'Malley v Hill & Dale Prop. Owners,299 AD2d 400, 402 [2002]; Perillo v Credendino, 264 AD2d 473 [1999]).However, where the language of the grant is ambiguous or unclear, the court willconsider surrounding circumstances tending to show the grantor's intent in creating theeasement (see Schulz vDattero, 104 AD3d 831, 835 [2013]; Board of Mgrs. of Bayside Plaza Condominium v Mittman, 50AD3d 718, 719 [2008]; Somers v Shatz, 22 AD3d 565, 567 [2005]; Route 22Assoc. v Cipes, 204 AD2d 705, 706 [1994]). Here, the language of the grant creatingan easement in favor of the Clemensens' property for "ingress and egress over thecontinuation of [the] private roadway as now or hereinafter located to the Hudson River"is ambiguous. Moreover, the evidence of the surrounding circumstances relied upon byboth parties, including the deeds in the chains of title to all three properties and varioussurveys, reveal the existence of triable issues of fact, including whether the grantorsintended to permanently fix that portion of the easement which continues from theexisting roadway to the river through the northeastern portion of the plaintiff's property,and whether the easement was relocated, inter alia, by the extension of the existingroadway over Fisher's property to within 30 feet of the river in 2004.
In addition, the plaintiff failed to make a prima facie showing that the Clemensens'alleged easement to the river along the northeastern portion of its property wasextinguished by adverse possession. The plaintiff's submissions were insufficient toestablish that its predecessor-in-title effectively interfered with the easement holders' useand enjoyment of the easement for the requisite period of time by, inter alia, constructinga low sea wall (see Spiegel v Ferraro, 73 NY2d 622, 625-626 [1989]; McGinley v Postel, 37 AD3d783, 784 [2007]; Cassidy v Reydon Shores Prop. Owners Assn., 233 AD2d359, 360 [1996]).
We reject the plaintiff's contention that the Clemensens' claim to an easement to theriver along the northeastern portion of its property is barred by res judicata because it wasconclusively determined in the prior action that the plaintiff's predecessor-in-titleadversely possessed this portion of the property. The prior action resulted in an orderdated July 6, 2006, which, inter alia, granted the motion of the plaintiff'spredecessor-in-title for summary judgment dismissing the complaint upon the groundthat the individual defendants' easement for access to and use of a dock on the plaintiff'sproperty "was extinguished by its own terms" once the dock ceased to exist. Although theJuly 2006 order also contained an alternative determination that the individualdefendants' dock easement had been extinguished by adverse possession because the"entire area" where that easement existed had been filled in and occupied by theplaintiff's predecessor-in-title to the exclusion of the individual defendants, it did not"necessarily decide" whether the Clemensens' claim to an easement allowing them tocontinue the existing paved road an additional 155 feet through the northeastern portionof the plaintiff's property was extinguished (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8,13 [2008]; Matter of New Cr.Bluebelt, Phase 4, 79 AD3d 888, 890 [2010]; Wargo v Jean, 77 AD3d919, 921 [2010]). Indeed, a subsequent order in the prior action expressly stated that"the loss of the dock easement has no effect on the Clemen[s]ens' right of way for [*4]ingress to and egress from the Hudson River, as set forth inthe deed to Clemensen dated June 18, 1985." Under these circumstances, the doctrine ofres judicata is inapplicable. Moreover, the alternative determination in the prior actionthat the individual defendants' dock easement was extinguished by adverse possession isnot entitled to preclusive effect under the doctrine of collateral estoppel (see Tydings v Greenfield, Stein &Senior, LLP, 11 NY3d 195, 199-200 [2008]; O'Connor v G & R PackingCo., 53 NY2d 278, 282-283 [1981]; Matter of Atlantic Mut. Ins. Co. vLauria, 291 AD2d 492, 493 [2002]).
Accordingly, upon reargument, the Supreme Court properly adhered to its priordetermination denying that branch of the plaintiff's motion which was for summaryjudgment on so much of its first cause of action as sought a judgment declaring that itsproperty is not subject to the alleged easement in favor of the Clemensens' propertyexcept an easement for the existing roadway, and properly denied that branch of theindividual defendants' cross motion which was for summary judgment declaring that theplaintiffs' property is subject to the alleged easement in favor of the Clemensens.
The Supreme Court also properly granted that branch of the plaintiff's motion whichwas for summary judgment on so much of the first cause of action as sought a judgmentdeclaring that its property is not subject to an alleged easement in favor of Fisher, anddenied that branch of the individual defendants' cross motion which was for summaryjudgment declaring that the plaintiff's property is subject to an alleged easement in favorof Fisher. While Fisher may use the Clemensens' easement appurtenant as their invitee(see Pouy v Mandia, 234 App Div 897 [1931]; 1 Rasch, New York Law andPractice of Real Property § 18:51 [2d ed]), the Clemensens, as the owners of thedominant estate, could not burden the servient estate by granting an easement in gross inFisher's favor (see 49 NY Jur 2d, Easements § 147; see generally 5Warren's Weed, New York Real Property § 40.10). Thus, the plaintiff's property isnot subject to an easement in gross in Fisher's favor.
Since triable issues of fact exist as to whether the Clemensens and Fisher, as theClemensens' guest, had the right to enter the plaintiff's property to extend the existingroadway to the river, the Supreme Court properly denied that branch of plaintiff's motionwhich was for summary judgment on the issue of liability on its causes of action torecover damages for trespass, private nuisance, and injury to property pursuant toRPAPL 861 insofar as asserted against the individual defendants, and that branch of theindividual defendants' cross motion which was for summary judgment dismissing thosecauses of action insofar as asserted against them (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]).
The individual defendants' remaining contentions are without merit. Eng, P.J.,Dillon, Lott and Cohen, JJ., concur.