Rosen v. Mosby

• Decision Date: 02 March 2017
• Citation: 51 N.Y.S.3d 629,148 A.D.3d 1228
• Parties: Steven ROSEN, Respondent–Appellant, v. Katherine MOSBY, Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1228

51 N.Y.S.3d 629

Steven ROSEN, Respondent–Appellant,

v.Katherine MOSBY, Appellant–Respondent.

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

March 2, 2017.

Cuddy & Feder, LLP, White Plains (Joshua E. Kimerling of counsel), for appellant-respondent.

Steven Rosen, New York City, respondent-appellant pro se.

Before: McCARTHY, J.P., EGAN JR., LYNCH, CLARK and MULVEY, JJ.

CLARK, J.

Appeals (1) from an order of the Supreme Court (Zwack, J.), entered April 23, 2014 in Columbia County, which denied defendant's motion for an order directing plaintiff to comply with outstanding discovery demands, (2) from an order of said court (Mott, J.), entered August 7, 2014 in Columbia County, which, among other things, granted defendant's cross motion for partial summary judgment, (3) from an order of said court (Mott, J.), entered October 6, 2014 in Columbia County, which, among other things, denied plaintiff's motion for reargument, (4) from an order of said court (Mott, J.), entered January 9, 2015 in Columbia County, which, among other things, granted defendant's motion for partial summary judgment, and (5) from an order of said court (Mott, J.), entered June 17, 2015 in Columbia County, which, among other things, denied plaintiff's motion for reargument.

The parties own adjoining properties located in the Town of Ancram, Columbia County. Plaintiff purchased his property in 1989 and his deed includes the grant of "the right of ingress and egress ... over: A[50–]foot[–]wide roadway" that is particularly described by metes and bounds. Plaintiff's deed further provides that the easement is "[s]ubject to a road maintenance agreement dated August 16, 1988." The duly recorded 1988 maintenance agreement was a declaration by the owner of the subdivision that included plaintiff's property and it provided—with reference to a subdivision map depicting the proposed 50–foot–wide roadway—that the cost of maintaining the private road would be shared by the property owners. The maintenance agreement expressly provided that each owner of a deeded lot in the subdivision would have "an easement and right-of-way in common over and across the private road depicted on the subdivision map for ingress or egress by motor vehicle or otherwise." By its terms, the maintenance agreement could be amended "by a written agreement signed and acknowledged" by a requisite number of owners. The maintenance agreement, however, provided that the "continuing easements in common in the private road" could be terminated, by an amendment to the maintenance agreement, only upon the unanimous consent of all the subdivision lot owners.

In March 1990, the maintenance agreement was amended because "the roadway as actually constructed and laid out on the ground varie[d] somewhat from the layout of the roadway as depicted" on the map referenced in the maintenance agreement. Consequently, the amendment "deemed ... the roadway as actually constructed and laid out on the ground" to be the roadway that was the subject of the maintenance agreement. Further, the amendment provided that the easement referenced in the maintenance agreement was "the width of the roadway and drainage ditches adjacent thereto as ... actually constructed" to be the roadway that was the subject of the maintenance agreement. In November 1990, after plaintiff agreed to and executed the amendment, it was recorded.

In 2011, defendant purchased her property, which is located across the road from plaintiff's property. Defendant's deed also included and was subject to the "right of ingress and egress" as shown on the original subdivision map, the maintenance agreement and the 1990 amendment to the maintenance agreement. In the spring of 2012, defendant cleared and graded an area located on the western edge of her property and installed a stockade fence along the private road. Plaintiff then commenced this action alleging six causes of action—the first four pursuant to the Real Property Actions and Proceedings Law—arising from his claim that the fence blocked his access to the right-of-way set forth in his deed. Defendant initially moved to dismiss the complaint, arguing that there was no encroachment because the maintenance agreement and the amendment thereto modified the right-of-way by moving the easement to the road that was built. Supreme Court (Zwack, J.) denied the motion, and defendant filed an answer asserting 12 affirmative defenses and two counterclaims.

In April 2014, Supreme Court denied defendant's motion for an order directing plaintiff to comply with certain discovery demands. Thereafter, by order entered in August 2014, Supreme Court (Mott, J.) denied plaintiff's motion for partial summary judgment and granted defendant's cross motion dismissing plaintiff's first four causes of action, finding that there was no dispute that plaintiff's rights of ingress and egress over the actual road were unimpeded by the fence that defendant had constructed on her own land. After twice granting plaintiff leave to amend his complaint to add causes of action for, as relevant here, indemnification, conversion and declaratory judgment, Supreme Court, by order entered January 2015, granted defendant's motion for partial summary judgment dismissing these causes of action as well. Defendant appeals from the April 2014 order, and plaintiff appeals from the August 2014 and January 2015 orders granting defendant partial summary judgment, as well as from two orders entered in October 2014 and June 2015 denying his motions for reargument.¹

We first turn to Supreme Court's dismissal of plaintiff's first four causes of action, in which plaintiff essentially alleged that defendant interfered with his deeded easement rights, delineated in the 50–foot–wide easement area for a period of 25 years, and that the fence erected by defendant blocked that right-of-way. "It is well settled that the extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties" (Boice v. Hirschbihl, 128 A.D.3d 1215, 1216, 10 N.Y.S.3d 648 [2015] [internal quotation marks, brackets and citations omitted]; see Shelmerdine v. Myers, 143 A.D.3d 1200, 1200, 40 N.Y.S.3d 248 [2016] ). "[W]here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder" (Lewis v. Young, 92 N.Y.2d 443, 449, 682 N.Y.S.2d 657, 705 N.E.2d 649 [1998] ; accord Thibodeau v. Martin, 119 A.D.3d 1015, 1016, 990 N.Y.S.2d 274 [2014] ; Sullivan v. Woods, 70 A.D.3d 1286, 1287, 895 N.Y.S.2d 578 [2010] ). If " ‘an easement is definitively located, by grant or by use, its location cannot be changed by either party unilaterally’ " (Estate Ct., LLC v. Schnall, 49 A.D.3d 1076, 1077, 856 N.Y.S.2d 251 [2008], quoting Clayton v. Whitton, 233 A.D.2d 828, 829, 650 N.Y.S.2d 404 [1996] ).

For example, unilateral relocation is not permitted where there is "an indication that the parties intended to permanently fix the easement's location, such as the inclusion of a metes and bounds description in the agreement creating the easement" (MacKinnon v. Croyle, 72 A.D.3d 1356, 1357, 899 N.Y.S.2d 422 [2010] ; see Estate Ct., LLC v. Schnall, 49 A.D.3d at 1077, 856 N.Y.S.2d 251 ).

Here, in support of his claim that he is entitled to judgment as a matter of law on his first four causes of action, plaintiff relied on the language in his deed, defendant's deed and a survey map. In opposition, defendant relied on the deeds, the maintenance agreement and the amendment to the maintenance agreement. Defendant further submitted affidavits by the subdivision developer and former property owners to establish that the originally proposed private roadway was rerouted in response to field conditions and that the maintenance agreement was amended to reflect the actual location of the easement for ingress and egress. Defendant's submissions confirm that the proposed road followed a relatively straight route through the subdivision and ended at a cul-de-sac, while the actual road follows the proposed road for a distance before veering to the west, away from defendant's property and onto plaintiff's parcel.²

Plaintiff's deed grants a right of ingress and egress over a 50–foot–wide roadway identified with a metes and bounds description and with reference to proposed subdivision map number 9951 (see Marsh v. Hogan, 56 A.D.3d 1090, 1092, 867 N.Y.S.2d 786 [2008] ). However, plaintiff's deed is expressly subject to the maintenance agreement, which references a proposed subdivision map number 10423 that depicts the same roadway as described in plaintiff's deed.³ Accordingly, by accepting the deed, plaintiff agreed to be "bound by and considered as having accepted and agreed to [the] protective covenants and restrictions" set forth in the maintenance agreement. In addition, when he executed the amendment to the maintenance agreement, plaintiff agreed that the as-built private roadway was "deemed" to be the location of the easement for ingress and egress.

In our view, plaintiff's deed clearly evinces that the intent of the easement was to provide a right of ingress and egress. Although plaintiff correctly argues that his deed fixed the location of the easement (see MacKinnon v. Croyle, 72 A.D.3d at 1357, 899 N.Y.S.2d 422 ), this does not resolve the issue presented. The plain language of plaintiff's deed incorporates the maintenance agreement, which was duly amended so as to " deem [ ]" the location of the easement for ingress and egress to follow the private road that was actually constructed. Accordingly, the easement was not relocated unilaterally, but with plaintiff's express consent, and we decline to construe the documents as creating a new easement in 1990. We further agree with Supreme Court's conclusion that, because plaintiff did not allege that d...