Plattekill Mountain Ski Chalet, LLC v. SKI Plattekill, Inc.

• Decision Date: 01 November 2012
• Citation: 2012 N.Y. Slip Op. 07257,100 A.D.3d 1094,953 N.Y.S.2d 374
• Parties: PLATTEKILL MOUNTAIN SKI CHALET, LLC, Respondent, v. SKI PLATTEKILL, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1094

953 N.Y.S.2d 374

2012 N.Y. Slip Op. 07257

PLATTEKILL MOUNTAIN SKI CHALET, LLC, Respondent,

v.SKI PLATTEKILL, INC., Appellant.

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

Nov. 1, 2012.

Bond, Schoeneck & King, PLLC, Albany (Robert H. Feller of counsel), for appellant.

Kehoe & Merzig, PC, Oneonta (Joseph F. Kehoe of counsel), for respondent.

Before: ROSE, J.P., SPAIN, KAVANAGH, STEIN and McCARTHY, JJ.

ROSE, J.P.

Appeal from a judgment of the Supreme Court (Lambert, J.), entered February 16, 2012 in Delaware County, which granted plaintiff's motion for summary judgment permanently enjoining defendant's interference with plaintiff's use of a certain easement.

Plaintiff owns a parcel of real property located within a ski area owned by defendant in the Town of Roxbury, Delaware County. Plaintiff's only means of accessing its parcel is over a right-of-way (hereinafter ROW) running through defendant's surrounding land. After disputes arose between the parties as to the location and scope of the ROW in 2006, plaintiff commenced an action in County Court pursuant to RPAPL article 15 and, in 2007, the court issued a decision and order determining that plaintiff is the lawful owner of a 50–foot–wide deeded ROW that includes access by motorized vehicles. Although County Court's later judgment also enjoined defendant from interfering with the use of the easement, access issues continued and plaintiff commenced this action in 2009 seeking, among other things, an order requiring defendant to remove existing barriers and obstacles from the ROW. After joinder of issue, plaintiff moved for summary judgment based upon, among other things, the outcome of the prior action and the affidavits of plaintiff's principal detailing his personal knowledge of the condition of the ROW and defendant's obstruction of it at three specific points. These were a gate at the beginning of the ROW, various newly-dug ditches across the ROW and an earthen berm constructed at an intersection between the ROW and a ski trail. Supreme Court, finding that defendant's arguments in opposition to the motion were barred by collateral estoppel and res judicata or were without merit, granted plaintiff's motion and ordered defendant to remove all of the obstructions.

As limited by its brief, defendant contends on appeal that issues of fact exist requiring denial of plaintiff's motion for summary judgment only as to the claimed obstruction at the intersection between the ROW and the ski trial. In describing that obstruction, plaintiff's principal avers that, prior to 2006, an overpass or bridge carried the ski trail over plaintiff's ROW where the two routes intersect. When the bridge collapsed due to forces of nature in June 2006, it left a cut or gap across the ski trail that was more than 10 feet deep. Rather than rebuild the bridge, defendant filled the gap with earth and graded it to the level of the ski trail, thereby creating a 10–foot–high earthen berm that enables skiers to use the ski trail unimpeded but blocks plaintiff's access across the ski trail. In response, defendant does not deny that it filled and graded the gap in its ski trail, arguing instead that plaintiff failed to establish that the location of the former bridge is within the ROW. In resolving this issue in plaintiff's favor, Supreme Court relied on County Court's 2007 decision and order determining that defendant did not take any action adverse to plaintiff's rights until it graded the ski trail in 2006.

Initially, defendant contends that Supreme Court's reliance on County Court's prior decision was improper because plaintiff raised the doctrines of collateral estoppel and res judicata for the first time in the reply papers. We are not persuaded. The instant action was brought based on the outcome of the County Court action, and plaintiff clearly relied on that outcome in its complaint and its original motion papers in support of summary judgment. Furthermore, plaintiff's reply was an appropriate response to defendant's argument in its opposing papers that an issue of fact existed as to whether the ROW intersected with the ski trail where the bridge had previously been located ( see Ioele v. Wal–Mart Stores, 290 A.D.2d 614, 615, 736 N.Y.S.2d 130 [2002];Ticor Tit. Guar. Co. v. Bajraktari, 261 A.D.2d 156, 157, 689 N.Y.S.2d 95 [1999] ).

Nor do we find any error in Supreme Court's conclusion that the obstruction of the ROW at its intersection with the ski trail was previously determined by County Court. In order to extinguish an easement by adverse possession, the dominant owner must be prevented from using the easement for the statutory time period ( see Spiegel v. Ferraro, 73 N.Y.2d 622, 627–628, 543 N.Y.S.2d 15, 541 N.E.2d 15 [1989];Gold v. Di Cerbo, 41 A.D.3d 1051, 1054, 837 N.Y.S.2d 787 [2007],lv. denied9 N.Y.3d 811, 846 N.Y.S.2d 601, 877 N.E.2d 651 [2007] ). In our view, the only reasonable...