Clark v. Filler, 97402.

• Citation: 809 N.Y.S.2d 305,2006 NY Slip Op 01330,26 A.D.3d 683
• Decision Date: 23 February 2006
• Docket Number: 97402.
• Parties: LOIS CLARK, Plaintiff, and ROBERT STRASSER et al., Respondents, v. MARTIN M. FILLER, Appellant.
• Court: New York Supreme Court Appellate Division

26 A.D.3d 683

809 N.Y.S.2d 305

2006 NY Slip Op 01330

LOIS CLARK, Plaintiff, and ROBERT STRASSER et al., Respondents, v. MARTIN M. FILLER, Appellant.

97402.

Appellate Division of the Supreme Court of the State of New York, Third Department.

February 23, 2006.

Appeals (1) from an order of the Supreme Court (Krogmann, J.), entered October 27, 2004 in Washington County, which, inter alia, partially denied defendant's motion for summary judgment, and (2) from an order of said court, entered July 28, 2005 in Washington County, which denied defendant's motion for reconsideration.

ROSE, J.

This appeal concerns the interpretation of a "Declaration of Covenants, Restrictions and Easements" (hereinafter the declaration) contained in the parties' deeds to adjoining properties on the shore of Lake George in Washington County. The declaration, among other things, grants an easement to plaintiffs Robert Strasser and Janis Strasser (hereinafter collectively referred to as plaintiffs) to access the lake over defendant's property and use defendant's covered dock "for purposes of boating, bathing and swimming." The declaration also provides that plaintiffs would bear any expense of repairing or replacing the dock and "[a]ny replacement of said dock will be of like quality to the existing dock." Supreme Court read these terms to permit plaintiffs to replace the existing corrugated metal hip roof over defendant's dock with a flat wooden sundeck with a railing around it and a stairway to permit plaintiffs and their guests to access and gather on the sundeck.

"The extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties" (Hopper v. Friery, 260 AD2d 964, 966 [1999] [citations omitted]; see Higgins v. Douglas, 304 AD2d 1051, 1054-1055 [2003]; Albrechta v. Broome County Indus. Dev. Agency, 274 AD2d 651, 651-652 [2000]). Here, rather than grant a general easement as to defendant's dock that would include any reasonable lawful use (cf. Phillips v. Jacobsen, 117 AD2d 785, 786 [1986]), the declaration limits the permitted uses of the dock and specifies the nature of any replacement (see Wechsler v. People, 13 AD3d 941, 943 [2004]). Supreme Court found that "boating, bathing and swimming" must include sunbathing because "bathing" is listed separately from "swimming" and personal cleansing is the only other type of bathing of which the court was aware....