Hasselback v. 2055 Walden Ave., Inc.

• Decision Date: 06 May 2016
• Docket Number: 406 CA 15-01482.
• Citation: 139 A.D.3d 1385,32 N.Y.S.3d 403,2016 N.Y. Slip Op. 03631
• Parties: Carl HASSELBACK, Plaintiff–Respondent, v. 2055 WALDEN AVENUE, INC., and Ronald Benderson and David Baldauf, as Trustees Under a Trust Agreement Dated September 22, 1993, known as the Randall Benderson 1993–1 Trust, Intervenors–Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 1385

32 N.Y.S.3d 403

2016 N.Y. Slip Op. 03631

Carl HASSELBACK, Plaintiff–Respondent,

v.2055 WALDEN AVENUE, INC., and Ronald Benderson and David Baldauf, as Trustees Under a Trust Agreement Dated September 22, 1993, known as the Randall Benderson 1993–1 Trust, Intervenors–Defendants–Appellants.

406 CA 15-01482.

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

May 6, 2016.

Whiteman Osterman & Hanna LLP, Albany (John J. Henry of Counsel), for Intervenors–Defendants–Appellants.

The McGorry Law Firm, LLP, Buffalo (Michael P.J. McGorry of Counsel), for Plaintiff–Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced a special proceeding, which has since been converted into an action, against the owner of an 18–acre parcel of property (larger parcel) upon which was situated a 2.4 acre parcel burdened by an easement in favor of plaintiff (burdened parcel). Plaintiff sought to enjoin the owner from erecting any “barriers, fencing, walls or the like within the easement area.” Supreme Court thereafter granted a motion by the intervenors-defendants (hereafter, Benderson), to intervene as party defendants. Benderson leases 4.6 acres of the larger parcel (leased parcel), and the burdened 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 amended answer, 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 the like” 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 prevent his customers from accessing his property.

Benderson moved for partial summary judgment declaring that Benderson is permitted, inter alia, “to make improvements to the [leased parcel], so long as the improvements do not unreasonably interfere with [p]laintiff's use of the [burdened parcel] for ingress and egress” to and from plaintiff's property. Of particular note, Benderson specifically stated that it was “not seeking summary judgment declaring that its particular proposed use [was] allowable under the easement.” Instead, Benderson conceded that “the fact-sensitive inquiry of whether Benderson's plan ... unreasonably interfere[d] with [p]laintiff's right of ingress and egress must await trial.”

At oral argument of the motions, the parties stipulated that the deed containing the easement language was “unambiguous” and that its interpretation was “a matter of law to be determined by the court.” The parties also specified that neither plaintiff nor Benderson had moved for summary judgment on the issue whether Benderson's proposed development would unreasonably interfere with plaintiff's rights under the easement.

In its order, the court concluded that the unambiguous language of the easement permitted improvements on the easement parcel. The court further concluded that Benderson's proposed improvements would “unduly impair [p]laintiff's right of passage over the [b]urdened [p]arcel.” In the first decretal paragraph, however, the court ordered that 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 rendering any 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 procedural course, 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 at trial and ... circumscribe the relevant issues for the court” (Loretto–Utica Props. Corp. v. Douglas Co., 226 A.D.2d 1058, 1059, 642 N.Y.S.2d 117 [internal quotation marks omitted]; see Mitchell v. New York Hosp., 61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 461 N.E.2d 285 ). Due to the limited scope of the respective motions, the court erred in rendering any decision on the reasonableness of the proposed improvement. In any event, the record establishes that there are triable issues of fact whether the proposed development unduly impairs plaintiff's right of ingress and egress over the burdened parcel.

Plaintiff contends, in response to Benderson's appeal, that the court erred in determining that the language of the easement permitted any improvements on the burdened parcel. Contrary to Benderson's contention, plaintiff is permitted to address that issue. 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 a result, plaintiff was not aggrieved by the order and could not appeal (see CPLR 5511 ). Pursuant to CPLR 5501(a)(1), a respondent on appeal may “obtain review of a determination incorrectly rendered below where, otherwise, he [or she] might suffer a reversal of the final judgment or order upon some other ground. Hence, the successful party, 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 the appellate...