Mentiply v. Foster

201 A.D.3d 1051

160 N.Y.S.3d 454

Sandra A. MENTIPLY, as Executor of the Estate of A. Donald Mentiply, Deceased, Appellant,

v.Nancy FOSTER et al., Respondents.

531578, 532560

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

Calendar Date: November 15, 2021

Decided and Entered: January 6, 2022

DuCharme Clark, LLP, Clifton Park (John B. DuCharme of counsel), for appellant.

Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Mark E. Cerasano of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Clark, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeals (1) from an order and judgment of the Supreme Court (Auffredou, J.), entered May 27, 2020 in Washington County, upon a decision of the court in favor of defendants, and (2) from an order of said court, entered November 19, 2020 in Washington County, which, among other things, denied plaintiff's motion for a preliminary injunction.

This action involves adjoining parcels of waterfront land that span the width of a small Lake George peninsula known as Crow Point, located in the Town of Putnam, Washington County. The parcels were part of an undeveloped, unitary tract of land until 1957, at which time Alexander Mentiply, one of plaintiff's predecessors in title, and Charles Thomas, one of defendants’ predecessors in title, acquired them, flipping a coin to determine which of the two friends would take title to which parcel. Alexander Mentiply won the coin flip and took title to the western, or lakeside, parcel (hereinafter the Mentiply parcel), and Charles Thomas in turn acquired the eastern, or bayside, parcel (hereinafter the Thomas parcel). Alexander Mentiply was also deeded a "right in perpetuity of ingress and egress by footpath to the premises ... conveyed" to him (hereinafter the deeded right-of-way by footpath) and "the use of the parking lot contiguous to the Crow Point right[-]of[-] way." The Crow Point right-of-way, a footpath, later came to encompass Crow Point Way, also known as Crow Point Road, a private, dirt roadway that connected Crow Point to the public roadway but stopped some distance northeast of the subject parcels. "Except[ed] and exclud[ed]" from the conveyances to both men was "the aforesaid footpath as it [then stood] and [was then] used for purposes of ingress and egress to the lands of ... George Bourgeois," the land immediately south of the two subject parcels at the point of the peninsula (hereinafter the footpath).

Sometime before 1967, Alexander Mentiply, Charles Thomas and other Crow Point residents improved Crow Point Way, which included extending the road so as to enable vehicular access to the Mentiply parcel and the Thomas parcel and the ensuing construction of camps thereon. Part of the extension carried onto the Thomas parcel, stopping just short of the boundary line between the two subject parcels (hereinafter the disputed portion of the Crow Point Way extension). Additionally, the Mentiply parcel remained approximately five feet lower in elevation than the Thomas parcel, inherently preventing a vehicle from being parked on the former. The Mentiplys therefore parked one or more vehicles on an abutting area of the Thomas parcel (hereinafter the disputed parking space), and they continued to do so for about 50 years.

In 2017, A. Donald Mentiply, who had acquired the property in 1990 from Alexander Mentiply, his father, undertook improvements to the northeast corner of the Mentiply parcel, where a set of stairs down to the rear entrance of the Mentiplys’ camp was located. The 2017 improvements created an elevated parking space on the Mentiply parcel, which was to be accompanied by a new staircase down therefrom, and, in the process, significantly modified the existing stone retaining wall that ran along the parties’ shared boundary, but which was mostly situated on the Thomas parcel. Defendants, who had by then acquired title to the Thomas parcel, were not consulted regarding the improvements and demanded that the Mentiplys remove the trespassing structures, obtaining a cease work order preventing further construction. They also took steps to prevent the Mentiplys from accessing the Thomas parcel, including the disputed portion of the Crow Point Way extension needed to access the elevated parking space by vehicle, the disputed parking space and the portion of the footpath that crosses over the Thomas parcel (hereinafter the disputed portion of the footpath). According to plaintiff, the Mentiplys had historically used the disputed portion of the footpath to access the front, lake-facing entrance to their camp in order to transport larger supplies and equipment that could not easily be brought through the camp via the rear entrance and to maintain the septic system that they shared with the Thomas parcel.

A. Donald Mentiply in turn commenced this action seeking title to the disputed parking space by adverse possession and an easement by prescription in the disputed portion of the footpath.¹ He then moved to temporarily enjoin defendants from continuing to block the Mentiplys’ access to the Thomas parcel, and the parties ultimately agreed to the entry of a stipulation and order resolving that motion and requiring defendants to so refrain until the resolution of this action. Defendants joined issue, setting forth a number of affirmative defenses, along with counterclaims for trespass and to quiet title. They also specifically sought a declaration that their property was "unencumbered by easements excepting the footpath deeded for use by the land formerly owned by George Bourgeois" and, "in addition and alternatively, that ... plaintiff has only an easement via a [three]-foot-wide footpath for ingress and egress on foot only located at the former location of the stairway" down to the Mentiply parcel.² Plaintiff replied, and, in pertinent part, asserted as an affirmative defense that defendants did not in fact have any property interest in the land constituting the disputed portion of the footpath and the disputed parking space located thereon (hereinafter collectively referred to as the disputed land) because that it was excepted and excluded from the conveyances to defendants’ predecessors in title. Following a nonjury trial, Supreme Court found in favor of defendants, dismissing the complaint and awarding judgment in their favor on their counterclaims for trespass and a declaratory judgment, but the court did not address the aforementioned affirmative defense, set forth any specific declaration or otherwise speak to defendants’ counterclaim to quiet title.

Plaintiff later filed a postjudgment order to show cause seeking a preliminary injunction to bar defendants from continuing to obstruct the disputed portion of the Crow Point Way extension and to hold them in contempt for allegedly violating the pretrial stipulation and order prohibiting same. The alleged obstruction prevented plaintiff from driving a vehicle over the disputed portion of Crow Point Way extension and, thus, from parking in the elevated parking space that the Mentiplys created, but a three-foot-wide opening remained, enabling plaintiff to walk to her property from the area where she has deeded parking rights and then descend to her parcel. In plaintiff's view, defendants’ actions demonstrated an erroneous belief that Supreme Court granted them all of the declaratory relief they sought and, as such, clarification was needed. Defendants opposed and, following oral argument, Supreme Court denied plaintiff's application in full. The court, however, did clarify that the declaratory relief granted to defendants did not include a determination as to the scope or use of plaintiff's "deeded footpath," or deeded right-of-way by footpath, or the means by which plaintiff may traverse it, observing that plaintiff sought no affirmative relief in that respect. The court also found that plaintiff's argument concerning defendants’ ownership of the disputed land was not raised at the time of trial, and the court therefore declined to address it. The court declared that defendants own the Thomas parcel in fee and that such parcel "is unencumbered, except for plaintiff's deeded footpath, nothing more."³ Plaintiff appeals from the final order and judgment and the postjudgment order.

Initially, Supreme Court failed to address plaintiff's affirmative defense concerning defendants’ ownership of the disputed land, which must be decided prior to considering whether she adversely acquired any rights over said land in this action. "Every instrument creating [or] transferring ... an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law" ( Real Property Law § 240[3] ; see Cannon v. Hampton, 198 A.D.3d 1230, 1231, 157 N.Y.S.3d 162 [2021] ; Margetin v. Jewett, 78 A.D.3d 1486, 1488, 912 N.Y.S.2d 356 [2010] ). The construction of a deed is generally a question of law for the courts to decide (see Lewis v. Young, 92 N.Y.2d 443, 449, 682 N.Y.S.2d 657, 705 N.E.2d 649 [1998] ; Jankoski v. Lake Forest Acres Homeowners, Inc., 107 A.D.3d 1367, 1368, 968 N.Y.S.2d 240 [2013] ; Hush v. Taylor, 84 A.D.3d 1532, 1533, 923 N.Y.S.2d 284 [2011] ), and, "[i]n construing [a] deed, all other deeds to which it refers, and which refer to each other[,] are required to be considered" ( Riegel v. Larnard, 178 App.Div. 355, 356, 164 N.Y.S. 763 [1917] ; see Loch Sheldrake Assoc. v. Evans, 306 N.Y. 297, 305, 118 N.E.2d 444 [1954] ; Elm Lansing Realty Corp. v. Knapp, 192 A.D.3d 1348, 1350, 145 N.Y.S.3d 160 [2021] ; Finster Inc. v. Albin, 152 A.D.3d 922, 924–925, 58 N.Y.S.3d 745 [2017] ).

Defendants’ 1994 and 1999 deeds⁴ provide that the conveyances were "subject to a footpath as it now stands and is now used for purpose of ingress and egress to lands now or formerly of George Bourgeois," as well as "any and all covenants, conditions, restrictions, easements...