Hush v. Taylor

• Decision Date: 12 May 2011
• Citation: Hush v. Taylor, 84 A.D.3d 1532, 923 N.Y.S.2d 284, 2011 N.Y. Slip Op. 3935 (N.Y. App. Div. 2011)
• 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

84 A.D.3d 1532

923 N.Y.S.2d 284

2011 N.Y. Slip Op. 03935

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.

May 12, 2011.

Hiscock & Barclay, L.L.P., Syracuse (Jon P. Devendorf of counsel), for appellants.D'Arrigo & Cote, Liverpool (Mario D'Arrigo of counsel), for respondents.Before: MERCURE, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ.MERCURE, J.P.

Appeal from an order of the Supreme Court(Cerio Jr., J.), entered June 11, 2010 in Madison County, which, among other things, granted plaintiffs' motion for summary judgment declaring the existence of certain easements across the real property of defendantsJames E. Taylor and Carol A. Larrabee.

In the late 1930s, Carrie Bushnell inherited a 25–acre parcel located on Oneida Lake in Madison County.The property, known as Bushnell Farm, is bordered by the lake to the north and State Route 31 to the south.Bushnell subdivided the lakefront portion into 16 lots and, between 1950 and 1955, she sold 14 of those lots.She retained two: a 60–foot–wide lot (hereinafter Western ROW) located five lots from the western boundary of Bushnell Farm, and a 50–foot–wide lot located two lots from the eastern border.

The lakefront lots are bordered to the south by a right-of-way known as White Haven Road (East–West).That road is bisected by another right-of-way known as White Haven Road (North–South), which runs south through the remainder of Bushnell Farm and connects with State Route 31.In the 1960s, Bushnell began to subdivide and sell off portions of Bushnell Farm located south of White Haven Road (East–West).The conveyances included easements over both White Haven Roads, as well as an additional lakefront easement for ingress and egress to Oneida Lake.Although the language describing the location of the additional easement varies, plaintiffs, who are the current owners of some of these lots, ¹ claim that the easement runs over the Western ROW.It is undisputed that the Western ROW was used for that purpose until 2006, at which time defendantsJames E. Taylor and Carol A. Larrabee(hereinafter collectively referred to as defendants) purchased that property as part of a larger parcel located south of White Haven Road (East–West) and impeded plaintiffs' use.

Plaintiffs commenced this action seeking, among other things, a declaration that they have either an express or a prescriptive easement for ingress and egress over the Western ROW, as well as the right to construct, maintain and use a dock.In their answer, defendants conceded that plaintiffsMark Hibbard, Eileen Hibbard, Nancy Fellows and Linda Wig have the right to use the Western ROW for ingress and egress,² but disputed the remaining claims.Plaintiffs moved for summary judgment on their claim of an express easement, and Supreme Court granted the motion, declaring that all plaintiffs have an express right-of-way and easement for ingress and egress over the Western ROW as well as the right to construct, maintain and use a dock.Defendants appeal, and we now affirm.

Defendants initially argue that Supreme Court decided plaintiffs' motion prematurely without allowing defendants sufficient time for discovery.However, defendants' failure to request leave to conduct discovery renders this argument unpreserved for our review ( seeGeneral Elec. Capital Corp. v. Highgate Manor Group,69 A.D.3d 992, 993, 893 N.Y.S.2d 321[2010] ).With respect to the merits, defendants do not dispute that plaintiffs possess an easement to Oneida Lake.Rather, they dispute the location of the easement and contend that summary judgment is improper because the language granting the easements is ambiguous.

“[T]he construction of an instrument conveying real property, including any easements set forth therein, is ordinarily a question of law for the court to determine”( Jordan v. Vogel,59 A.D.3d 919, 920, 874 N.Y.S.2d 306[2009];seeEliopoulous v. Lake George Land Conservancy,50 A.D.3d 1231, 1232, 854 N.Y.S.2d 601[2008] ).Where the description of the conveyance is not specific, extrinsic evidence may be used to demonstrate the grantor's intent ( seeAlbright v. Davey,68 A.D.3d 1490, 1491, 892 N.Y.S.2d 575[2009], lv. denied14 N.Y.3d 708, 2010 WL 1754758[2010];Leaman v. McNamee,58 A.D.3d 918, 920, 870 N.Y.S.2d 612[2009] ).If that evidence is disputed or subject to more than one interpretation, summary judgment is inappropriate ( seeJordan v. Vogel,59 A.D.3d at 920, 874 N.Y.S.2d 306;Eliopoulous v. Lake George Land Conservancy,50 A.D.3d at 1232, 854 N.Y.S.2d 601).

We turn first to the language granting lakefront easements to plaintiffs...