Rosenzweig v. Howlan
| Decision Date | 01 November 2018 |
| Docket Number | 526316 |
| Citation | 166 A.D.3d 1146,87 N.Y.S.3d 658 |
| Parties | Martin A. ROSENZWEIG et al., Respondents, v. Francis A. HOWLAN III, Appellant. |
| Court | New York Supreme Court — Appellate Division |
166 A.D.3d 1146
87 N.Y.S.3d 658
Martin A. ROSENZWEIG et al., Respondents,
v.
Francis A. HOWLAN III, Appellant.
526316
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: September 7, 2018
Decided and Entered: November 1, 2018
Melita & Smelyansky, PC, Albany (Max Smelyansky of counsel), for appellant.
Wood, Seward & McGuire, LLP, Gloversville (Jeremiah Wood of counsel), for respondents.
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.
MEMORANDUM AND ORDER
McCarthy, J.
Appeal from an order of the Supreme Court (Tomlinson, J.), entered April 26, 2017 in Fulton County, upon a decision of the court in favor of plaintiffs.
In 1966, plaintiffs' parents purchased property on Lampman Road in the Town of Broadalbin, Fulton County. In 1995, plaintiff Martin A. Rosenzweig became the owner of a parcel of that property on which he had been residing with his mother. His sister, plaintiff Lois J. Rosenzweig, returned to the area in 1990 and obtained ownership of a parcel of property from her mother in 1996. Between the parcel owned by Martin Rosenzweig and the parcel owned by Lois Rosenzweig is an approximately 30–foot–wide strip of land (hereinafter the right-of-way) owned by defendant. The right-of-way contains a crushed stone driveway extending 100 feet from, and perpendicular to, Lampman Road, then another 200 to 250 feet of grassy area, before connecting to a 33–acre wooded parcel owned by defendant. Plaintiffs used the driveway to access their homes and a garage, and parked adjacent to it.
In 2013, after defendant attempted to prevent plaintiffs from using the right-of-way, Martin Rosenzweig commenced this action pursuant to RPAPL article 15 seeking, among other things, a declaration that he possessed title to the right-of-way by adverse possession. He later filed an amended complaint that added his sister as a plaintiff and sought a declaration that they are fee owners of the right-of-way or, alternatively, a declaration that they have a prescriptive easement over the right-of-way. After plaintiffs rested their case at the end of the first day of a bench trial, they moved for a directed verdict or, in the alternative, to amend the pleadings to conform to the proof regarding a prescriptive easement. Supreme Court reserved decision, but eventually granted the motion to amend. After defendant presented his evidence and the parties submitted closing arguments, the court, among other things, granted plaintiffs a prescriptive easement over the crushed stone driveway and the entire right-of-way. Defendant appeals.
Because the first amended complaint raised prescriptive easement as an alternative demand to plaintiffs' fee ownership claim, their trial motion to amend was superfluous. Even if some amendment was necessary, Supreme Court did not abuse its discretion in...
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