Pomygalski v. Eagle Lake Farms, Inc.

• Decision Date: 15 April 1993
• Citation: 596 N.Y.S.2d 535,192 A.D.2d 810
• Parties: Frederick POMYGALSKI et al., Respondents, v. EAGLE LAKE FARMS, INC. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 535

596 N.Y.S.2d 535

192 A.D.2d 810

Frederick POMYGALSKI et al., Respondents, v. EAGLE LAKE FARMS, INC. et al., Appellants.

Supreme Court, Appellate Division Third Department.

April 15, 1993.

De Graff, Foy, Holt-Harris & Mealey (Linda J. Clark, of counsel), Albany, for appellants.

O'Connell & Aronowitz (David Cherubin, of counsel), Albany, for respondents.

Before WEISS, P.J., and YESAWICH, LEVINE, CREW and MAHONEY, JJ.

WEISS, Presiding Justice.

Appeals (1) from a judgment of the Supreme Court (Conway, J.), entered March 27, 1992 in Albany County, which, inter alia, granted plaintiffs' motion for summary judgment, and (2) from an order of said court, entered June 9, 1992 in Albany County, which denied defendants' motion for reconsideration.

In 1967, plaintiffs purchased a lot in the Town of Rensselaerville, Albany County, from Ray Trautman which was subdivided out of a larger parcel of land which Trautman owned. The deed included an easement for limited recreational use of and access to a bathing beach on the existing Triangle Lake and to another beach to be designated on a second lake yet to be constructed on Trautman's land. Eric Trautman succeeded to his father's title of the remaining servient parcel and, in 1976, allegedly constructed an impoundment dam resulting in a lake. Following several deeds to purchasers of parcels, the remainder of the servient land was leased to William Holscher and Rosalind Holscher, who in July 1990 prevented plaintiffs from crossing over the premises that they leased, thus denying plaintiffs access to the lake and the beach. In August 1991, the Holschers charged plaintiffs with trespassing on their property and Town Court rendered an oral directive enjoining plaintiffs from entry upon the Holschers' property until resolution of plaintiffs' claim to the easement in a civil action. On October 12, 1991, defendant Eagle Lake Farms, Inc., a corporation of which Rosalind Holscher is the president, took title to the servient parcel then occupied by the Holschers. Plaintiffs commenced this RPAPL article 15 action and, after joinder of issue, moved for summary judgment. Defendants cross-moved for similar relief. Defendants appeal from the judgment which granted plaintiffs' motion and denied their cross motion. Defendants' motion for reconsideration was denied and they have also appealed from that order.

Defendants contend that Eagle Lake took title to the property including the lake without notice of plaintiffs' easement. Although this contention was not raised before Supreme Court and, therefore, has not been preserved for our review (see, Szigyarto v. Szigyarto, 64 N.Y.2d 275, 486 N.Y.S.2d 164, 475 N.E.2d 777; Diller v. Munchmeyer, 130 A.D.2d 868, 869, 515 N.Y.S.2d 642, lv. denied 70 N.Y.2d 605, 519 N.Y.S.2d 1028, 513 N.E.2d 1308; Matter of Schiavone Constr. Co. v. Larocca, 117 A.D.2d 440, 444, 503 N.Y.S.2d 196, lv. denied, 68 N.Y.2d 610, 508 N.Y.S.2d 1026, 501 N.E.2d 37), we find that the argument should be rejected. A grantee of land takes title subject to duly recorded easements that have been granted by his predecessors-in-title (see, Zunno v. Kiernan, 170 A.D.2d 795, 796, 565 N.Y.S.2d 900). The June 16, 1967 deed from Ray Trautman to plaintiffs clearly contains the disputed easement granting plaintiffs the right to use the lake and have ingress and egress to it over and along all roads leading to the beaches. Moreover, because the Holschers prosecuted plaintiffs for trespass in Town Court before Eagle Lake took title to the servient parcel, they can hardly contend they did not have actual notice of plaintiffs' claimed easement (see, id., at 796, 565 N.Y.S.2d 900).

Defendants next contend that summary judgment was inappropriate because triable issues of fact remained unresolved. We disagree. The easement was conditioned upon the creation of a proposed lake and designation of a bathing beach and is not dependent upon who actually constructed the lake. The affidavits and exhibits in the record adequately establish that a lake was constructed on the property and that plaintiffs together with owners of lots purchased from Ray Trautman had access to and used the lake extensively for years. Defendants' opposition failed to raise genuine factual issues sufficient to defeat the motion (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Defendants...