Ferguson v. Hart

• Decision Date: 08 June 2017
• Citation: 56 N.Y.S.3d 624,151 A.D.3d 1242
• Parties: Shane FERGUSON et al., Respondents, v. Ronald R. HART Jr., Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1242
56 N.Y.S.3d 624

Shane FERGUSON et al., Respondents,
v.
Ronald R. HART Jr., Appellant, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

June 8, 2017.

56 N.Y.S.3d 625

The Ayers Law Firm, PLLC, Palatine Bridge (Kenneth L. Ayers of counsel), for appellant.

Albanese & Albanese, Gloversville (Michael M. Albanese of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

McCARTHY, J.P.

Appeal from an order of the Supreme Court (Sise, J.), entered November 18, 2015 in Fulton County, which granted plaintiffs' motion to conform the pleadings to the proof and amend the complaint.

Plaintiffs and defendants own adjoining parcels of land within a subdivision that was created by the filing of a subdivision plat in 1892. In August 2012, plaintiffs brought this action against defendants under RPAPL article 15 to quiet title to two paper streets. As clarified in their brief, the premise of plaintiffs' action was that they had "claim[ed] title to [the] two ... paper streets by adverse possession under written instrument."¹ Defendants Ronald R. Hart Jr., John J. Ryan and Laura S. Ryan (hereinafter collectively referred to as defendants) answered, denying plaintiffs' claims and raising several affirmative defenses.² In particular, defendants contended that plaintiffs had an implied easement as to the two papers streets, and that, therefore, plaintiffs' use of the paper streets was not hostile so as to support an adverse possession claim (see e.g. Carman v. Hewitt, 280 A.D. 866, 866, 114 N.Y.S.2d 266 [1952], affd. 305 N.Y. 718, 112 N.E.2d 785 [1953] ; see generally Sinicropi v. Town of Indian Lake, 148 A.D.2d 799, 800, 538 N.Y.S.2d 380 [1989] [hostile possession is "an actual invasion of or infringement upon the owner's rights"] ).³ After a nonjury

56 N.Y.S.3d 626

trial, plaintiffs moved to conform the pleadings to the proof. In their motion, plaintiffs contended that the proof established both that any easement was abandoned such that plaintiffs' subsequent use of the property was hostile and that RPAPL 1951(2) permitted them to extinguish any easement associated with the two paper streets. Supreme Court granted the motion, and Hart now appeals. We reverse.

While leave to amend pleadings should be freely given absent prejudice to an opposing party, leave must be denied when the amendments are "palpably insufficient on their faces" (Clark v. Taylor Wine Co., 148 A.D.2d 908, 909, 539 N.Y.S.2d 536 [1989] [internal quotation marks and citation omitted]; see Holst v. Liberatore, 105 A.D.3d 1374, 1374, 964 N.Y.S.2d 333 [2013] ). "[A]bandonment [of an easement] occurs through the holder's nonuse, combined with the holder's intention to abandon" (Janoff v. Disick, 66 A.D.3d 963, 966, 888 N.Y.S.2d 113 [2009] ). These two requisite elements cannot be conflated, and it is well-settled that "abandonment does not result from nonuse alone, no matter how long, inasmuch as owners are not required to make use of their property" (Janoff v. Disick, 66 A.D.3d at 966, 888 N.Y.S.2d 113 ; see Gerbig v. Zumpano 7 N.Y.2d 327, 331, 197 N.Y.S.2d 161, 165 N.E.2d 178 [1960] ;

Gold v. Di Cerbo, 41 A.D.3d 1051, 1053, 837 N.Y.S.2d 787 [2007], lv. denied 9 N.Y.3d 811, 846 N.Y.S.2d 601, 877 N.E.2d 651 [2007] ). In their motion, plaintiffs alleged that the proof that the paper streets went undeveloped and unused for a prolonged period of time established the requisite intent to abandon an easement. Because nonuse, as a matter of law, does not establish intent to abandon, and given that plaintiffs did not allege that the proof showed any other acts that would be cognizable in satisfying the requirement of "unequivocal [acts] ... clearly demonstrat[ing] the owner[s'] intention to permanently relinquish all rights to [an] easement" (Janoff v....