Gugino v. Scripa

214 N.Y.S.3d 492

228 A.D.3d 1112

Joseph L. GUGINO et al., Respondents,

v.Larry E. SCRIPA et al., Defendants,andMarlyn Park Drive, LLC, et al., Appellants.

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

Calendar Date: April 24, 2024

Decided and Entered: June 13, 2024

Barclay Damon LLP, Syracuse (Jon P. Devendorf of counsel), for appellants.

Fogel & Brown, PC, Syracuse (Gregory M. Brown of counsel), for respondents.

Before: Egan Jr., J.P., Aarons, Lynch, Reynolds Fitzgerald and Powers, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from an order of the Supreme Court (Patrick J. O’Sullivan, J.), entered May 9, 2023 in Madison County, which, among other things, granted plaintiffs’ motion for partial summary judgment.

Plaintiffs and defendants own parcels of real property in Marlyn Park, located near Cazenovia Lake, in the Town of Cazenovia, Madison County.¹ In 1958, plaintiffs’ and defendants’ predecessors in interest entered into a written agreement, deed and conveyance (hereinafter agreement) whereby they mutually agreed to allow one another and their successors and assigns to have a perpetual right-of-way and easement over an approximately 44-by-38-foot parcel of land, including the lakeshore frontage, "for the purposes of boating, bathing and docking." Since that time, plaintiffs have used the lot regularly, including, among other things, annually placing a seasonal dock in the center of the lake frontage. In February 2021, defendant Marlyn Park Drive, LLC (hereinafter MPD) purchased the 44-by-38-foot lakeshore frontage property and, in March 2021, installed a permanent dock in the area where the seasonal dock had always been. Plaintiffs commenced this action seeking, among other things, an order declaring that the lakeshore frontage parcel is for the common use of plaintiffs and for MPD to remove the permanent dock and restore the property. Thereafter, plaintiffs moved for partial summary judgment declaring plaintiffs’ easement rights and injunctive relief. Supreme Court granted the motion, determining that plaintiffs had both an express appurtenant and prescriptive easement over the entire property, that said easements were year-round, and granted plaintiffs a permanent injunction directing MPD to remove the dock.² MPD appeals.

[1, 2] "An easement appurtenant is created through a written conveyance, subscribed by the grantors, that burdens the servient estate for the benefit of the dominant estate" (Doman v. Fort Ann Cent. Sch Dist., 201 A.D.3d 1229, 1230, 159 N.Y.S.3d 777 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Stone v. Donlon, 156 A.D.3d 1308, 1309, 69 N.Y.S.3d 115 [3d Dept. 2017], lv dismissed 31 N.Y.3d 1109, 80 N.Y.S.3d 210, 105 N.E.3d 349 [2018], lv denied 33 N.Y.3d 903, 2019 WL 1998039 [2019]). "[O]nce created, an easement appurtenant runs with the land and passes to subsequent owners of the dominant estate through appurtenance clauses, even if it is not specifically mentioned in the deed" (Northwood Sch., Inc. v. Fletcher, 190 A.D.3d 1136, 1139, 140 N.Y.S.3d 297 [3d Dept. 2021] [internal quotation marks and citation omitted]).

[3–5] MPD does not dispute that an express easement appurtenant was created by the 1958 agreement. Instead, MPD contends that Supreme Court improperly construed the nature and scope of the express easement. We disagree. "The construction of an instrument conveying real property, including any easements set forth therein, is ordinarily a question of law for the court to determine" (Hush v. Taylor, 84 A.D.3d 1532, 1533, 923 N.Y.S.2d 284 [3d Dept. 2011] [internal quotation marks, brackets and citations omitted]; see Mentiply v. Foster, 201 A.D.3d 1051, 1055, 160 N.Y.S.3d 454 [3d Dept. 2022]). "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" (Raven Indus., Inc. v. Irvine, 40 A.D.3d 1241, 1242, 834 N.Y.S.2d 753 [3d Dept. 2007] [internal quotation marks and citations omitted]; see Northwood Sch., Inc. v. Fletcher, 190 A.D.3d at 1139, 140 N.Y.S.3d 297). Where "the language of the grant contains no restrictions or qualifications and the purpose of the easement is to provide ingress and egress, any reasonable lawful use within the contemplation of the grant is permissible" (Albright v. Davey, 68 A.D.3d 1490, 1492, 892 N.Y.S.2d 575 [3d Dept. 2009] [internal quotation marks and citations omitted], lv denied 14 N.Y.3d 708, 2010 WL 1754758 [2010]; see Northwood Sch., Inc. v. Fletcher, 190 A.D.3d at 1139–1140, 140 N.Y.S.3d 297).

[6–8] The unambiguous language set forth in paragraph 5 of the agreement states that "all lot owners or owners of property situated in said Marlyn Park, their successors and assigns, shall and do have a perpetual easement and right of way over [certain described lands] for the purposes of boating, bathing and docking." As reflected in the language of the agreement, and as confirmed by the affidavits of plaintiffs, the purpose of the easement was to allow all Marlyn Park property owners access to Cazenovia Lake for purposes of boating, bathing and docking. Plaintiffs aver that they have in fact made extensive use of the land and lake for over 30 years, including the annual installation of a community dock. "Given the purpose of the easement and the absence of restrictions, any reasonable lawful use by plaintiffs within the contemplation of the grant is permissible, and the installation, mainte- nance, and use of a dock at the end of a right-of-way providing access to a lake is a reasonable use incidental to .the purpose of the easement" (Mosley v. Parnell, 211 A.D.3d 1530, 1531–1532, 181 N.Y.S.3d 815 [4th Dept. 2022] [internal quotation marks, brackets and citations .omitted]; see Hush v. Taylor, 84 A.D.3d at 1535, 923 N.Y.S.2d 284; Van De Carr v. Schloss, 277 App.Div. 475, 477, 101 N.Y.S.2d 48 [3d Dept. 1950]). While defendants assert that the scope of the express easement does not entitle plaintiffs to install a dock at a certain location, we are unpersuaded. Once an easement is located, and where, as here, the seasonal dock was placed at the same location every year for over 30 years, with the servient property owner’s knowledge and consent, the location of the dock became fixed and certain. "This long-time use, without objection by the servient tenement, establishes the location of the easement" (Green v. Mann, 237 A.D.2d 566, 567, 655 N.Y.S.2d 627 [2d Dept. 1997] [citations omitted]). "[A] landowner may not unilaterally change a right of way if that change impairs enjoyment of the easement holder’s rights" (Lewis v. Young, 92 N.Y.2d 443, 452, 682 N.Y.S.2d 657, 705 N.E.2d 649 [1998]; see Dowd v. Ahr, 78 N.Y.2d 469, 473, 577 N.Y.S.2d 198, 583 N.E.2d 911 [1991]; Onthank v. Lake Shore & Mich. S. R.R. Co., 71 N.Y.194, 198 [1877]; Estate Ct., LLC v. Schnall, 49 A.D.3d 1076, 1077, 856 N.Y.S.2d 251 [3d Dept. 2008]). Furthermore, we do not agree with MPD’s assertion that Supreme Court determined the easement to be exclusive to plaintiffs. Although we agree that, within the dicta of Supreme Court’s decision, the court mistakenly opines that defendant Eric Brown is a "trespasser,"³ the order itself is devoid of such language and, in fact, Supreme Court explicitly found that the easement benefits all Marlyn Park property owners (see Cannon v. Hampton, 198 A.D.3d 1230, 1234, 157 N.Y.S.3d 162 [3d Dept. 2021]; Hurd v. Lis, 92 A.D.2d 653, 654, 460 N.Y.S.2d 173 [3d Dept. 1983]).

[9, 10] MPD next asserts that Supreme Court improperly expanded the nature and scope of the easement by granting plaintiffs a prescriptive easement. We agree that the court improperly determined that plaintiffs have a prescriptive easement. As the agreement contains an express easement giving permission to all Marlyn Park property owners to access and use the property (see Charlebois v. Lobe–A Prop. Owners, Inc., 193 A.D.2d 916, 918, 597 N.Y.S.2d 776 [3d Dept. 1993]), based on neighborly cooperation and accommodation, the presumption of hostility does not arise (see Penn Hgts. Beach Club, Inc. v. Myers, 42 A.D.3d 602, 605–606, 839 N.Y.S.2d 570 [3d Dept. 2007], lv dismissed 10 N.Y.3d 746, 853 N.Y.S.2d 533, 883 N.E.2d 357 [2008]; Allen v. Mastrianni, 2 A.D.3d 1023, 1024, 768 N.Y.S.2d 523 [3d Dept. 2003]). Nevertheless, we are unpersuaded that Supreme Court improperly expanded the scope of the easement. While the agreement itself makes no reference to the location of the dock, as previously discussed, both plaintiffs’ affidavits and photographs substantiated that, year after year, they located the seasonal dock in the center line of the property. Thus, the dock became fixed in that location and could not be relocated without permission. As to the storage of the seasonal dock and boats on the lakefront property, this is a reasonable, lawful use by plaintiffs and is within the contemplation of the easement (see Mosley v. Parnell, 211 A.D.3d at 1531–1532, 181 N.Y.S.3d 815; Hush v. Taylor, 84 A.D.3d at 1535, 923 N.Y.S.2d 284; Van De Carr v. Schloss, 277 App.Div. at 477,101 N.Y.S.2d 48).

[11, 12] As to the use of the lakefront property in winter, "[a] right-of-way is a type of easement" (Hoffmann v. Delbeau, 139 A.D.3d 803, 804, 33 N.Y.S.3d 289 [2d Dept. 2016]). Paragraph 4 of the agreement, establishes a...