Maicus v. Maicus

• Decision Date: 07 December 2017
• Docket Number: 524785
• Citation: 66 N.Y.S.3d 557,156 A.D.3d 1019
• Parties: Dwayne MAICUS, et al., Appellants, v. Earl R. MAICUS, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1019
66 N.Y.S.3d 557

Dwayne MAICUS, et al., Appellants,
v.
Earl R. MAICUS, et al., Respondents.

524785

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

Calendar Date: October 12, 2017
Decided and Entered: December 7, 2017

66 N.Y.S.3d 558

Briggs Norfolk LLP, Lake Placid (Matthew D. Norfolk of counsel), for appellants.

Law Offices of Dean C. Schneller, Plattsburgh (Dean C. Schneller of counsel), for respondents.

Before: McCarthy, J.P., Egan Jr., Lynch, Rose and Rumsey, JJ.

MEMORANDUM AND ORDER

Rose, J.

156 A.D.3d 1020

Appeal from an order of the Supreme Court (Ryan, J.), entered June 21, 2016 in Clinton County, which, among other things, granted defendants' cross motion for partial summary judgment on their counterclaims.

Plaintiffs own a 14–acre parcel of real property and defendants own an adjoining 136–acre parcel, both of which are located in the Town of Black Brook, Clinton County. The parties' dispute centers on whether defendants possess a right-of-way over "two branch dirt roads" that travel across plaintiffs' property. The parties' trace the ownership of their adjoining properties back to John Smith, who acquired 150 acres of land in 1949 and then immediately entered into an unrecorded land contract with Scott Colby and Lila Colby to sell the entire 150–acre parcel to them. In 1950, the Colbys entered into another unrecorded land contract to sell their interest in 14 of those acres to Bernard Muzzy and Gloria Muzzy, plaintiffs' predecessors in interest.

The Colbys ultimately took title to the entire parcel in 1954, when Smith conveyed the 150 acres to them by deed. Immediately thereafter, the Colbys—having previously sold their interest in 14 of those acres to the Muzzys—conveyed the remaining 136 acres by deed to Robert Peck and Joseph VanValkenburg, defendants' predecessors in interest. The 1954 deed from the Colbys to Peck and VanValkenburg provided for the "grant" of a right-of-way by the Colbys to Peck and VanValkenburg "over the dirt road extending from the Plains Road, over and across" the 14–acre parcel sold to the Muzzys "as said road is now laid out" to a location "situated near the front of the [Muzzys'] house." This deed also granted "the right[-]of[-]way for ingress and egress over two branch dirt roads extending from the road located near the house northerly to the property herein sold." Significantly, the Colbys' 1954 deed to Peck and VanValkenburg further provided that this right-of-way was the same right-of-way that the Colbys had previously "reserved in the [1950] land contract" that they had entered into with the Muzzys.

In 1955, upon the Muzzys' completion of their land contract with the Colbys, the Colbys conveyed the 14–acre parcel to the Muzzys by deed. This 1955 deed, which conveyed the last of the 150–acre parcel originally owned by the Colbys, provided

156 A.D.3d 1021

that it was "reserving the right of ingress and egress over two branch dirt roads extending from the road located near the house northerly to the remaining property owned by the [Colbys]." This language reserving the right-of-way appears in every

66 N.Y.S.3d 559

deed in plaintiffs' chain of title, including plaintiffs' own 2013 deed.

When defendants entered plaintiffs' property to improve one of the branch dirt roads, plaintiffs commenced this action for declaratory relief pursuant to RPAPL article 15, as well as for nuisance and trespass. Defendants answered and counterclaimed seeking, among other things, a declaration that they possess a right-of-way over the "two branch dirt roads." When plaintiffs moved to disqualify defendants' attorney, defendants cross-moved for partial summary judgment on their counterclaims. Ultimately, Supreme Court granted defendants' cross motion, finding that they possessed the right-of-way. As a result, the court dismissed plaintiffs' RPAPL article 15 and trespass causes of action. This appeal by plaintiffs ensued. We affirm.

Initially, we are unpersuaded by plaintiffs' contention that any right-of-way granted in the Colbys' 1954 deed to Peck and VanValkenburg was extinguished because that deed is not in plaintiffs' chain...