Stasack v. Dooley

• Decision Date: 14 March 2002
• Citation: Stasack v. Dooley, 292 A.D.2d 698, 739 N.Y.S.2d 478 (N.Y. App. Div. 2002)
• Parties: STEPHEN A. STASACK et al., Appellants,<BR>v.<BR>LISA DOOLEY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

292 A.D.2d 698

739 N.Y.S.2d 478

STEPHEN A. STASACK et al., Appellants,

v.LISA DOOLEY et al., Respondents.

Decided March 14, 2002.

Peters, Mugglin, Rose and Lahtinen, JJ., concur.

Crew III, J.P.

Plaintiffs are the owners of certain real property located at 45 Benker School Way in the Town of Grafton, Rensselaer County, including approximately 100 feet of beach on the shore of South Long Pond, and defendants are the owners of neighboring parcels on Benker School Way or their invitees.^[*] Each of the respective parcels now owned by plaintiffs or defendants may be traced to common grantors, Adolf Scholl and Henry Benker. Insofar as it is relevant to this appeal, each defendant took title to his or her respective parcel, either directly from Scholl and Benker or through a predecessor in interest, by way of a deed containing the following (or substantially similar) clause: "Together with a right of way for purposes of ingress and egress over said private road; also together with the right to use the private beach located on said South Long Pond and owned by the parties of the first part for swimming and bathing purposes, in common with other owners of beach privileges." Similarly, a review of plaintiffs' chain of title reflects that they and each of their predecessors in interest took title to their particular parcel "subject to the right of other owners of beach privileges to use the private beach located on the premises hereby conveyed for swimming and bathing purposes." The record further reflects that plaintiffs were aware, prior to purchasing their parcel, that neighborhood families used the beach located on their property for the very purposes outlined in the deeds contained in the respective chains of title.

Plaintiffs took title to their parcel in August 1998 and, in July 1999, commenced this action in Supreme Court, Rensselaer County, as well as a companion action, seeking declarations that defendants had no right to use plaintiffs' beach. Plaintiffs also sought injunctive relief. Ultimately, venue was changed to Albany County and, following a conference before Supreme Court, the various motions then pending between the parties were converted to motions for summary judgment. By order entered October 4, 2000, Supreme Court, inter alia, denied plaintiffs' third request for injunctive relief, dismissed the complaint as against defendants F. Joseph Shulga and Margaret A. Shulga, who were not property owners at any relevant time, granted defendants' motions for summary judgment and permanently enjoined plaintiffs from interfering with defendants' use of the beach for swimming and bathing purposes only. This appeal by plaintiffs ensued.

Plaintiffs' primary argument on appeal is that the language contained in defendants' respective deeds did not create an easement over plaintiffs' parcel but, rather, created a license that plaintiff Stephen A. Stasack has now revoked. We cannot agree. It is well settled that "an easement appurtenant is created when such easement is `(1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate'" (Niceforo v Haeussler, 276 AD2d 949, 950, quoting Strnad v Brudnicki, 200 AD2d 735, 736). Each of those...