| Hasselback v 2055 Walden Ave., Inc. |
| 2016 NY Slip Op 03631 [139 AD3d 1385] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| Carl Hasselback, Respondent, v 2055 WaldenAvenue, Inc., et al., Appellants. |
Whiteman Osterman & Hanna LLP, Albany (John J. Henry of counsel), forIntervenors-defendants-appellants.
The McGorry Law Firm, LLP, Buffalo (Michael P.J. McGorry of counsel), forplaintiff-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County(Timothy J. Walker, A.J.), entered April 1, 2015. The judgment, among other things,granted plaintiff's motion for summary judgment and denied intervenors-defendants'motion for partial summary judgment.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law without costs, plaintiff's motion is denied, the motion of theintervenors-defendants is granted and partial judgment is granted in favor of theintervenors-defendants as follows:
It is adjudged and declared that the intervenors-defendants are entitled to makeimprovements to the leased parcel provided that such improvements do not unreasonablyinterfere with plaintiff's use of the burdened parcel for ingress and egress to and fromplaintiff's property.
Memorandum: Plaintiff commenced a special proceeding, which has since beenconverted into an action, against the owner of an 18-acre parcel of property (largerparcel) upon which was situated a 2.4 acre parcel burdened by an easement in favor ofplaintiff (burdened parcel). Plaintiff sought to enjoin the owner from erecting any"barriers, fencing, walls or the like within the easement area." Supreme Court thereaftergranted a motion by the intervenors-defendants (hereafter, Benderson), to intervene asparty defendants. Benderson leases 4.6 acres of the larger parcel (leased parcel), and theburdened parcel is situated within that leased parcel. Once Benderson entered the action,plaintiff discontinued its action against the owner of the larger parcel. In its amendedanswer, Benderson asserted two counterclaims seeking, inter alia, a declaration "whether[its] proposed development . . . infringes upon [plaintiff's] claimed rights"in the burdened parcel.
Plaintiff moved for summary judgment "permanently enjoining and restraining[Benderson] from erecting or causing to be erected any barriers, fencing, walls or thelike" on the burdened parcel as well as "prohibiting and permanently enjoining[Benderson] from blocking Plaintiff's access or use in any way" of the burdened parcel.Plaintiff contended that any type of structure built on the burdened parcel would preventhis customers from accessing his property.
Benderson moved for partial summary judgment declaring that Benderson ispermitted, inter alia, "to make improvements to the [leased parcel], so long as theimprovements do not unreasonably interfere with [p]laintiff's use of the [burdenedparcel] for ingress and egress" to and from plaintiff's property. Of particular note,Benderson specifically stated that it was "not [*2]seekingsummary judgment declaring that its particular proposed use [was] allowable under theeasement." Instead, Benderson conceded that "the fact-sensitive inquiry of whetherBenderson's plan . . . unreasonably interfere[d] with [p]laintiff's right ofingress and egress must await trial."
At oral argument of the motions, the parties stipulated that the deed containing theeasement language was "unambiguous" and that its interpretation was "a matter of law tobe determined by the court." The parties also specified that neither plaintiff norBenderson had moved for summary judgment on the issue whether Benderson's proposeddevelopment would unreasonably interfere with plaintiff's rights under the easement.
In its order, the court concluded that the unambiguous language of the easementpermitted improvements on the easement parcel. The court further concluded thatBenderson's proposed improvements would "unduly impair [p]laintiff's right of passageover the [b]urdened [p]arcel." In the first decretal paragraph, however, the court orderedthat it was granting plaintiff's motion "in its entirety" and declared that Benderson did not"possess the right to construct the [p]roposed [i]mprovement on the [b]urdened [p]arcel,because it would unduly impair [p]laintiff's right of passage over it."
As a preliminary matter, we agree with Benderson that the court erred in renderingany decision on the reasonableness of the proposed improvement. It is well settled that,"[u]nless public policy is violated, the parties are free to chart their own proceduralcourse, and may fashion the basis upon which a particular controversy will be resolved. . . Thus, [p]arties may by stipulation shape the facts to be determined attrial and . . . circumscribe the relevant issues for the court"(Loretto-Utica Props. Corp. v Douglas Co., 226 AD2d 1058, 1059 [1996][internal quotation marks omitted]; see Mitchell v New York Hosp., 61 NY2d208, 214 [1984]). Due to the limited scope of the respective motions, the court erred inrendering any decision on the reasonableness of the proposed improvement. In any event,the record establishes that there are triable issues of fact whether the proposeddevelopment unduly impairs plaintiff's right of ingress and egress over the burdenedparcel.
Plaintiff contends, in response to Benderson's appeal, that the court erred indetermining that the language of the easement permitted any improvements on theburdened parcel. Contrary to Benderson's contention, plaintiff is permitted to address thatissue. Here, despite the language in the body of its decision and order, the court"ordered" that plaintiff's motion for summary judgment was granted "in its entirety." As aresult, plaintiff was not aggrieved by the order and could not appeal (see CPLR5511). Pursuant to CPLR 5501 (a) (1), a respondent on appeal may "obtain review of adetermination incorrectly rendered below where, otherwise, he [or she] might suffer areversal of the final judgment or order upon some other ground. Hence, the successfulparty, who is not aggrieved by the judgment or order appealed from and who, therefore,has no right to bring an appeal, is entitled to raise an error made below, for review by theappellate court, as long as that error has been properly preserved and would, if corrected,support a judgment in his [or her] favor" (Parochial Bus Sys. v Board of Educ. ofCity of N.Y., 60 NY2d 539, 545-546 [1983]; see Town of Massena v NiagaraMohawk Power Corp., 45 NY2d 482, 488 [1978]). We thus address the merits ofplaintiff's contention.
On the merits, however, we reject plaintiff's contention. Due to the stipulation of theparties that the language of the easement was unambiguous, we are constrained to reviewonly the language contained within the four corners of the instrument (see Beal Sav. Bank v Sommer,8 NY3d 318, 324 [2007]; W.W.W. Assoc. v Giancontieri, 77 NY2d 157,162 [1990]). Although the deed containing the easement excepted and reserved aneasement "across and over the entire [burdened parcel] for the purpose of freeingress and egress" (emphasis added), subject to two conditions not relevant here, thedeed also contained a restriction precluding the erection of any structure or the operationof any business on the burdened parcel that sold or dispensed liquid vehicle fuel." 'Under the standard canon of contract construction expressio unius est exclusioalterius, that is, that the expression of one thing implies the exclusion of theother' " (Mastrocovo vCapizzi, 87 AD3d 1296, 1298 [2011]), the fact that the deed specificallyprohibited the erection of one particular type of structure and the operation of oneparticular type of business compels us to conclude that the erection of other types ofstructures and the operation of other types of businesses are not so precluded. If theparties to the deed had intended to preclude the erection of all structures and theoperation of all businesses, then the reference to those structures or businesses that soldor dispensed liquid vehicle fuel "would have been unnecessary" (Realtime [*3]Data, LLC v Melone, 104 AD3d 748, 751 [2013];see generally Matter of NewYork City Asbestos Litig., 41 AD3d 299, 302 [2007]).
Plaintiff contends that the restriction applied to the entirety of the larger parcel, butthat contention is not supported by the language of the deed containing the easement.Rather, plaintiff's contention is based on extrinsic evidence. It is well settled that"[e]vidence outside the four corners of the document as to what was really intended butunstated or misstated is generally inadmissible to add to or vary the writing"(W.W.W. Assoc., 77 NY2d at 162; see Alt v Laga, 207 AD2d 971, 971[1994]).
We thus conclude that the intent of the easement was to provide plaintiff "only aright of ingress and egress, [and as a result], it [was] the right of passage, and not anyright in a physical passageway itself, that [was] granted to the easement holder"(Lewis v Young, 92 NY2d 443, 449 [1998]). Benderson, as the leaseholder of theparcel burdened by an express easement of ingress and egress may therefore "narrow it,cover it over, gate it or fence it off, so long as the [plaintiff's] right of passage is notimpaired" (id.). The issue whether Benderson's proposed development will impairplaintiff's right of passage must be determined at trial. Present—Centra, J.P.,Peradotto, Carni, Curran and Troutman, JJ.