Mccolgan v. Brewer

• Decision Date: 12 May 2011
• Citation: 923 N.Y.S.2d 276,84 A.D.3d 1573,2011 N.Y. Slip Op. 03954
• Parties: John McCOLGAN, Respondent,v.Donald BREWER et al., Defendants,andPhilip Kirschner, Appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1573

923 N.Y.S.2d 276

2011 N.Y. Slip Op. 03954

John McCOLGAN, Respondent,

v.Donald BREWER et al., Defendants,andPhilip Kirschner, Appellant.

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

May 12, 2011.

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Jessica A. Desany of counsel), for appellant.Law Offices of Michael G. Dowd, New York City (Niall MacGiollabhui of counsel), for respondent.Before: MERCURE, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ.STEIN, J.

Appeal from an order of the Supreme Court (Zwack, J.), entered July 2, 2010 in Ulster County, which, among other things, granted plaintiff's cross motion for partial summary judgment on the issue of whether certain real property is benefitted by a particular right-of-way.

In 1953, a parcel of real property in the Town of Rosendale, Ulster County owned by Edith Kelley was divided by the construction of the New York State Thruway. As a result, the portion of Kelley's parcel east of the Thruway, together with several neighboring properties, became landlocked. Rose Klepeis, the owner of the property immediately south of Kelley's landlocked property, entered into a series of right-of-way agreements with her northerly neighbors, including Kelley, to gain access to State Route 32 via a private road, known as Alberts Lane.¹ In 2005, Kelley's daughter, who had inherited the property upon Kelley's death, sold both the westerly and easterly portions of Kelley's original parcel to plaintiff.

Before he purchased the subject property, plaintiff retained the services of defendants Rothe Engineering & Construction and Donald Brewer to conduct a survey of the property. Plaintiff also retained defendant Philip Kirschner to determine if the easterly portion of the property had access to State Route 32 via Alberts Lane. Plaintiff obtained insurance from defendant Chicago Title Insurance Company through its local agent, Abbacy Abstract, in order to insure against any losses that he would incur if the landlocked portion of the property did not have access to the public roadway. Plaintiff thereafter successfully had the zoning of the property amended so that he could develop and use it as a pipe yard for his underground utility pipe business. Plaintiff was subsequently informed that the right-of-way over Alberts Lane did not benefit the landlocked portion of his property and filed a claim under the insurance policy, which Chicago Title rejected.

Plaintiff commenced this action for negligence and breach of contract against Brewer and for legal malpractice against Kirschner based on their alleged representations that the landlocked portion of the property was benefitted by the existing right-of-way. Plaintiff subsequently amended his complaint to add causes of action for breach of contract against Rothe Engineering and Chicago Title, as well as a fraud claim against Chicago Title. Chicago Title moved for summary judgment seeking dismissal of plaintiff's complaint on the ground that the right-of-way agreements entered into by Klepeis did benefit plaintiff's landlocked property. Plaintiff cross-moved for partial summary judgment for a determination that his landlocked property was not benefitted by the right-of-way. Kirschner then moved to preclude certain expert testimony identified in plaintiff's supplemental expert disclosure and plaintiff cross-moved for costs and sanctions against Kirschner for filing a frivolous motion. Supreme Court denied Chicago Title's motion for summary judgment, granted plaintiff's cross motion for partial summary judgment and denied the cross motions relating to the expert disclosure. Kirschner now appeals.

Kirschner's contention that, when viewed together, the subject right-of-way agreements evince an intent to benefit plaintiff's property is unavailing. A party cannot reserve an easement over another's property in favor of a third party who is not a party to the agreement ( see Matter of Estate of Thomson v. Wade, 69 N.Y.2d 570, 573–574, 516 N.Y.S.2d 614, 509 N.E.2d 309 [1987]; compare Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052, 1054–1055, 872 N.Y.S.2d 725 [2009]; Matter of Bauer v. County of Tompkins, 57 A.D.3d 1151, 1152, 870 N.Y.S.2d 131 [2008] ). Here, Klepeis is the only grantee in the agreements and Kelley's involvement is limited to that of a grantor of a right-of-way over her own property. As neither Kelley nor her successors in interest were grantees with respect to the right-of-way agreements with the other landowners, such agreements do not benefit the landlocked portion of plaintiff's property as a matter of law ( see generally Matter of Estate of Thomson v. Wade, 69 N.Y.2d at 573–574, 516 N.Y.S.2d 614, 509 N.E.2d 309; Clearmont Prop., LLC v. Eisner, 58 A.D.3d at 1054, 872 N.Y.S.2d 725; Matter of Bauer v. County of Tompkins, 57 A.D.3d at 1152, 870 N.Y.S.2d 131).²

Furthermore, when the construction of the Thruway caused the subject property to become landlocked, the surrounding land was owned by different owners. As there was no unity and subsequent severance of title, plaintiff's landlocked property cannot benefit from an easement by necessity or an easement by implication ( see Lew Beach Co. v. Carlson, 77 A.D.3d 1127, 1129–1130, 910 N.Y.S.2d 565 [2010]; Sadowski v. Taylor, 56 A.D.3d 991, 993, 867 N.Y.S.2d 574 [2008]; compare Thomas Gang, Inc. v. State of New York, 19 A.D.3d 861, 862, 797 N.Y.S.2d 583 [2005] ). Nor can plaintiff, who acquired the property in 2005, demonstrate use of the right-of-way for the requisite 10–year period in order to establish an easement by prescription ( see Lew Beach Co. v. Carlson, 77 A.D.3d at 1128, 910 N.Y.S.2d 565; Sadowski v. Taylor, 56 A.D.3d at 994, 867 N.Y.S.2d 574; Weir v. Gibbs, 46 A.D.3d 1192, 1193, 849 N.Y.S.2d 97 [2007] ), as there is no evidence that any of plaintiff's predecessors in interest used the right-of-way. Finally, plaintiff's landlocked property was not part of a common scheme or subdivision necessary to show that the right-of-way was intended to benefit it ( see Steinmann v. Silverman, 14 N.Y.2d 243, 246, 251 N.Y.S.2d 1, 200 N.E.2d 192 [1964]; Palma v. Mastroianni, 276 A.D.2d 894, 894–895, 714 N.Y.S.2d 537 [2000]; Heim v. Conroy, 211 A.D.2d 868, 870, 621 N.Y.S.2d 210 [1995] ). Accordingly, Supreme Court properly determined that the landlocked portion of plaintiff's property was not benefitted by the existing right-of-way as a matter of law and granted plaintiff's ...