Hush v. Taylor

• Decision Date: 23 October 2014
• Citation: Hush v. Taylor, 2014 NY Slip Op 7231, 995 N.Y.S.2d 336, 121 A.D.3d 1363 (N.Y. App. Div. 2014)
• Parties: Penelope L. Sullivan HUSH et al., Respondents, v. James E. TAYLOR et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 1363

995 N.Y.S.2d 336

2014 N.Y. Slip Op. 07231

Penelope L. Sullivan HUSH et al., Respondents,

v.James E. TAYLOR et al., Appellants, et al., Defendants.

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

Oct. 23, 2014

Affirmed.Hiscock & Barclay, LLP, Syracuse (Jon P. Devendorf of counsel), for appellants.

D'Arrigo & Cote, Liverpool (Mario D'Arrigo of counsel), for respondents.

Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and CLARK, JJ.GARRY, J.

Appeal from an order of the Supreme Court(Cerio Jr., J.), entered September 25, 2012 in Madison County, which partially granted plaintiffs' motion to, among other things, hold defendantsJames E. Taylor and Carol A. Larrabee in civil contempt.

Plaintiffs are owners of parcels of real property near Oneida Lake in Madison County.In 2006, defendantsJames E. Taylor and Carol A. Larrabee(hereinafter collectively referred to as defendants) acquired a nearby 60–foot–wide waterfront lot (hereinafter the passageway) over which plaintiffs hold certain deeded rights-of-way and easements.Thereafter, plaintiffs commenced this action alleging that defendants had impeded their use of the passageway and seeking, among other things, a declaration of their rights.Following joinder of issue, plaintiffs moved for summary judgment.In 2010, Supreme Court granted the motion and issued an order declaring that plaintiffs had express rights-of-way and easements over the passageway for access to the lake, as well as the right to construct, maintain and use a dock.Defendants were further directed, among other things, to maintain the passageway and not to interfere with plaintiffs' use of it.This Court affirmed the 2010 order (84 A.D.3d 1532, 923 N.Y.S.2d 284[2011] ).

In July 2012, plaintiffs moved for an order holding defendants in civil contempt and directing them to comply with the 2010 order.Plaintiffs alleged that defendants had interfered with their use of the passageway by, among other things, partially blocking it with a fence and leaving junk boats, debris and other personal property on it, and had prevented them from properly placing, constructing and using a dock.After considering defendants' opposing submissions and viewing the property, Supreme Court partially granted plaintiffs' motion, found that defendants were in contempt of the 2010 order, and ordered them, among other things, to remove the fence and personal property from the passageway and to cease and desist from interfering with plaintiffs' use of the passageway and dock, including reasonable recreational uses consistent with accessing and using the lake.Defendants appeal.

To establish civil contempt, plaintiffs were required to demonstrate by clear and convincing evidence that defendants knowingly disobeyed a clear and unequivocal court order and that such conduct prejudiced plaintiffs' rights ( seeTown of Copake v. 13 Lackawanna Props., LLC,73 A.D.3d 1308, 1309, 900 N.Y.S.2d 508[2010];Beneke v. Town of Santa Clara,61 A.D.3d 1079, 1080–1081, 876 N.Y.S.2d 229[2009] ).Defendants contend that the requisite showing was not made, as they did not disobey a clear and unequivocal order.In defendants' view, Supreme Court's 2010 order was limited to a declaration that plaintiffs have a right of ingress and egress over the passageway that does not include any property rights in the passageway itself; defendants thus contend that they were not prohibited from partially fencing the passageway or placing other property on it, provided that plaintiffs' reasonable right of passage was not impaired ( seeLewis v. Young,92 N.Y.2d 443, 449, 682 N.Y.S.2d 657, 705 N.E.2d 649[1998] ).However, the rule relied upon by defendants applies to rights-of-way that are not specifically defined or bounded by the language of the grant ( seeLedley v. D.J. & N.A. Mgt.,228 A.D.2d 482, 482, 643 N.Y.S.2d 675[1996]; 5–40 Warren's Weed, New York Real Property § 40.17[2014] ).Here, the 2010 order determined that the deeds granted plaintiffs a defined 60–foot–wide easement and right-of-way consisting of the passageway, and that plaintiffs further possessed rights to construct, maintain and use a dock (84 A.D.3d at 1533–1534, 923 N.Y.S.2d 284).The 2010 order also expressly directed defendants to keep the passageway “free of all brush and tall grasses, junk boats, debris, and other personal property” that interfered or could interfere with plaintiffs' rights, and to maintain the passageway in an unobstructed fashion.Defendants raised no factual challenge to plaintiffs' claim that the fencing was partially obstructing the passageway, that they had permitted tall grass and brush to grow, and that they had allowed the accumulation of personal property and debris upon the passageway.Accordingly, Supreme Court correctly found that they violated a clear and unequivocal mandate in these respects ( seeHamilton v. Murphy,79 A.D.3d 1210, 1212–1213, 913 N.Y.S.2d 372[2010], lv. dismissed16 N.Y.3d 794, 919 N.Y.S.2d 508, 944 N.E.2d 1148[2011] ).

Although the 2010 order did not specify the precise location where plaintiffs were to construct their dock, it did direct defendants not to interfere with plaintiffs' right to construct and use a dock “within the northerly extensions” of the passageway.Plaintiffs submitted a survey map and other evidence demonstrating that defendants had placed their dock in the center of the passageway in such a manner that insufficient space was left in the northerly end for plaintiffs to position or use a dock without infringing on the rights of a neighboring landowner.Further, plaintiffs alleged that defendants had prohibited them from anchoring their dock on the passageway's foreshore, and had instead required them to anchor it at the...