J.C. Tarr, Q.P.R.T. v. Delsener

• Citation: 2005 NY Slip Op 05262,800 N.Y.S.2d 177,19 A.D.3d 548
• Decision Date: 20 June 2005
• Docket Number: 2004-02358.
• Parties: J.C. TARR, Q.P.R.T., Respondent-Appellant, v. ELLIN DELSENER et al., Appellants-Respondents.
• Court: New York Supreme Court Appellate Division

19 A.D.3d 548

800 N.Y.S.2d 177

2005 NY Slip Op 05262

J.C. TARR, Q.P.R.T., Respondent-Appellant, v. ELLIN DELSENER et al., Appellants-Respondents.

2004-02358.

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

June 20, 2005.

In an action, inter alia, for a judgment declaring that the plaintiff has a prescriptive easement over certain parcels of property owned by the defendants, the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated February 3, 2004, as denied their cross motion for partial summary judgment dismissing those portions of the complaint alleging that the plaintiff has a prescriptive easement over the property consisting of an additional two feet of land on either side of the right-of-way in question, and the plaintiff cross-appeals from so much of the same order as denied its cross motion for summary judgment seeking a permanent injunction directing the defendants to remove all obstructions on the right-of-way in question, a declaration of its prescriptive right to an additional two feet on either side of the right-of-way, and a declaration that the defendants' reconfiguration and installation of certain obstructions on, in, and along the right-of-way constituted a private nuisance.

Ordered that the order is reversed insofar as appealed from, on the law, and the defendants' cross motion for partial summary judgment is granted; and it is further,

Ordered that the order is affirmed insofar as cross-appealed from; and it is further,

Ordered that the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the plaintiff does not have a prescriptive easement over the property owned by the defendants consisting of an additional two feet of land on either side of the right-of-way; and it is further,

Ordered that one bill of costs is awarded to the defendants.

The plaintiff trust is the fee owner of an 11-acre parcel benefitted by an easement by grant that provides ingress and egress from Middle Lane in the Village of East Hampton to several parcels via "a perpetual right-of-way and easement to pass and repass on foot or with animals and vehicles over and along a private roadway 10 feet wide." The defendants, Ellin Delsener and Berkley Bowen, are the fee owners of the burdened properties which are located to the south of the plaintiff's parcel and contain the right-of-way. In 2000 the plaintiff began construction of a pool house and swimming pool on the southern portion of its property. During construction, large commercial trucks and other vehicles, rather than following the deeded right-of-way, traversed the northwestern corner of Delsener's parcel and proceeded straight toward the southern portion of the plaintiff's parcel. In September 2001 Delsener installed a wooden split rail fence that roughly followed the metes and bounds description of the deeded right-of-way, blocking the straight roadway created by the construction vehicles.

The plaintiff commenced this action against the defendants alleging, inter alia, that it is the beneficial owner of a prescriptive easement of an additional two feet of land on either side of the original 10-foot right-of-way due to the curves of the driveway, and that the installation of the split rail fence impeded and prevented its use and enjoyment of the right-of-way. The plaintiff moved for a preliminary injunction directing the removal and/or relocation of the wooden split rail fencing installed adjacent to the right-of-way, and prohibiting the defendants from maintaining any obstructions or impediments on the right-of-way. The defendants cross-moved for partial summary judgment dismissing those portions of the complaint alleging that the plaintiff had a prescriptive easement over their properties. The plaintiff then cross-moved for summary judgment on all of the claims asserted in the complaint. The Supreme Court granted the plaintiff's motion for a preliminary injunction only to the extent of directing Delsener to remove that portion of her split rail fence which limited the width of the right-of-way to less than 10 feet. Further, the Supreme Court denied both the plaintiff's cross motion for summary judgment and the defendants' cross motion for partial summary judgment as it determined that questions of fact existed regarding the "necessary element of continuous use for the...