Janoff v. Disick

• Decision Date: 27 October 2009
• Docket Number: 2008-07280.,2008-09946.
• Parties: LORI JANOFF et al., Appellants, v. MAE DISICK, Respondent.
• Court: New York Supreme Court — Appellate Division

66 A.D.3d 963

888 N.Y.S.2d 113

2009 NY Slip Op 7800

LORI JANOFF et al., Appellants, v. MAE DISICK, Respondent.

2008-07280.

2008-09946.

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

Decided October 27, 2009.

In an action, inter alia, to compel the determination of claims to real property pursuant to RPAPL article 15, the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated July 2, 2008, as granted those branches of the defendants' motion which were for summary judgment dismissing the second cause of action alleging adverse possession and the third cause of action alleging abandonment, and denied those branches of their cross motion which were for summary judgment on those causes of action, and (2) from an order of the same court dated October 7, 2008, which denied that branch of their cross motion which was for summary judgment on the first cause of action, among other things, for a judgment declaring, in effect, that the withholding of their consent to the erection of a split-rail fence in the location proposed by the defendants is not unreasonable, and, upon searching the record, awarded summary judgment to the defendants, in effect, declaring that the plaintiffs' withholding of their consent is unreasonable.

Ordered that the order dated July 2, 2008, is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the second cause of action alleging adverse possession and substituting therefor a provision denying that branch of the motion; as so modified, the order dated July 2, 2008, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

Ordered that the order dated October 7, 2008, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the second cause of action and, if warranted, the entry of a judgment in accordance herewith declaring that the plaintiffs' withholding of their consent to the erection of a split-rail fence in the location proposed by the defendants is unreasonable.

Since 1992, the plaintiffs, Lori Janoff and Peter Janoff (hereinafter the Janoffs), have owned residential property in Mamaroneck, abutting residential property owned by the defendant Mae Disick. Pursuant to a 1991 agreement (hereinafter the agreement), the Janoffs' predecessor-in-interest granted, to Disick and Disick's now-deceased husband (hereinafter together the Disicks), the right to the exclusive use and possession of a portion (hereinafter the grant area) of what is now the Janoffs' real property. The agreement, which was recorded in the Office of the County Clerk, Westchester County, in 1991, also authorized the Disicks to erect a split-rail fence less than four feet high in the grant area, provided that the Disicks first obtained the permission of Janoffs' predecessor-in-interest, which permission could not be unreasonably withheld.

Disick notified the Janoffs in August 2007 that she intended to erect a split-rail fence in the grant area, and the Janoffs commenced the instant action alleging, in part, that the proposed location of the fence was unreasonable and that, therefore, under the agreement, they could withhold their consent to its erection. They further alleged that Disick's interest in a portion of the grant area (hereinafter the disputed portion) was extinguished by abandonment or, alternatively, by adverse possession. Disick moved for summary judgment dismissing the abandonment and adverse possession causes of action, and the Janoffs cross-moved for summary judgment on those causes of action, as well as on the cause of action for a judgment declaring that the withholding of their consent to the erection of the proposed fence is reasonable. In an order dated July 2, 2008, the Supreme Court granted Disick's motion for summary judgment and denied the Janoffs' cross motion for summary judgment as to the abandonment and adverse possession causes of action, and directed the parties to submit further evidence with respect to the cause of action regarding the reasonableness of the Janoffs' withholding of their consent to the erection of the fence. After further submissions, the Supreme Court, in an order dated October 7, 2008, denied that branch of the Janoffs' cross motion which was for summary judgment declaring that the withholding of their consent is reasonable and, upon searching the record, awarded summary judgment to Disick, in effect, declaring that the Janoffs' withholding of their consent is unreasonable. The Janoffs appeal from both orders.

The 1991 agreement created an easement appurtenant in the grant area of the Janoffs' property benefiting Disick's property (see Corrarino v Byrnes, 43 AD3d 421, 423 [2007]; Strnad v Brudnicki, 200 AD2d 735, 736 [1994]). An easement created by grant may be lost by abandonment (see Consolidated Rail Corp v MASP Equip. Corp., 67 NY2d 35, 39 [1986]), but abandonment does not result from...