Tarsel v. Trombino

167 A.D.3d 1462

91 N.Y.S.3d 635

Michael J. TARSEL and Suzanne M. Tarsel, Plaintiffs–Respondents–Appellants,

v.James J. TROMBINO, Defendant–Appellant–Respondent.

1007

CA 17–02136

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

Entered: December 21, 2018

PULLANO & FARROW, ROCHESTER (LANGSTON D. MCFADDEN OF COUNSEL), FOR DEFENDANT–APPELLANT–RESPONDENT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN G. FELTER OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS–APPELLANTS.

PRESENT: WHALEN, P.J., SMITH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

Appeal and cross appeal from an order and judgment (one paper) of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered June 21, 2017. The order and judgment granted in part the motion of defendant for summary judgment dismissing the complaint and declared that plaintiffs may make certain improvements to an easement.

It is hereby ORDERED that the order and judgment so appealed from is unanimously reversed on the law without costs, the declaration is vacated, the motion is denied in its entirety and the complaint is reinstated.

Memorandum: Defendant appeals and plaintiffs cross-appeal from an order and judgment, which declared that plaintiffs may repair and improve an easement subject to certain conditions and granted defendant's motion for summary judgment dismissing the complaint except to that extent.

The parties are neighbors. Defendant owns a private access road that extends from the nearest public road, past the entrance to plaintiffs' driveway. Between defendant's private road and the entrance to plaintiffs' driveway is a narrow strip of unpaved land, which defendant also owns. Plaintiffs have an easement over the private road and the strip of land, both of which they need to use in order to access their driveway and property. The strip of land, however, deteriorated over time, resulting in an elevation differential that has caused vehicles entering plaintiffs' property to scrape their undercarriages when they cross from the easement to the driveway. Plaintiffs approached defendant about paving the strip to allow for smooth access to the driveway by vehicles. Defendant raised concerns that paving the strip would cause water to drain onto his property, pool there, and freeze during the winter months, creating a hazardous condition. Plaintiffs refused to discuss defendant's concerns. Instead, plaintiffs contracted to have the strip paved, and defendant had the asphalt removed the day after it was installed.

Plaintiffs commenced this action seeking money damages in the amount of $1,300, punitive damages, a permanent injunctio n restraining defendant from interfering with future maintenance and repair of the easement, and costs and attorneys' fees. Defendant moved for summary judgment dismissing the complaint. After searching the record, Supreme Court "adjudged and declared that plaintiffs may make improvements to the easement to correct the impediment to reasonable access to the driveway on their land," subject to conditions: "[T]hey may make improvements to the easement as necessary to correct the impediment to reasonable access to the driveway on their land. Their right is conditioned on the improvements being done in a fashion that will not cause water to pool on the easement or increase the amount of water that has pooled historically. A further condition is that the improvements are to be only as much as necessary to change the grade to allow ordinary vehicles from scraping when entering and exiting the driveway, but in any event, may not exceed the dimensions of the previous improvement." The court otherwise granted the motion and dismissed the complaint except to that extent. We conclude that the court erred, and we therefore reverse the order and judgment, vacate the declaration, deny the motion in its entirety, and reinstate the complaint.

A party's right of passage over an easement carries with it the " ‘right to maintain it in a reasonable condition for such use’ " ( Ickes v. Buist, 68 A.D.3d 823, 824, 890 N.Y.S.2d 641 [2d Dept. 2009] ; see Schoolman v. Mannone, 226 A.D.2d 521, 521–522, 640 N.Y.S.2d 616 [2d Dept. 1996] ). The right to repair and maintain an easement includes "the right to carry out work as necessary to reasonably permit the passage of vehicles and, in so doing, to ‘not only remove impediments but supply deficiencies in order to construct [or repair] a suitable road’ " ( Lopez v. Adams, 69 A.D.3d 1162, 1163–1164, 895 N.Y.S.2d 532 [3d Dept. 2010], quoting Missionary Socy. of Salesian Congregation v. Evrotas, 256 N.Y. 86, 90, 175 N.E. 523 [1931] ; see Ickes, 68 A.D.3d at 823–824, 890 N.Y.S.2d 641 ; Bilello v. Pacella, 223 A.D.2d 522, 522, 636 N.Y.S.2d 112 [2d Dept. 1996] ). The right to repair and maintain, however, is "limited to those actions ‘necessary to effectuate the express purpose of [the] easement’ " ( Lopez, 69 A.D.3d at 1164, 895 N.Y.S.2d 532 ; see Albrechta v. Broome County Indus. Dev. Agency, 274 A.D.2d 651, 652, 710 N.Y.S.2d 709 [3d Dept. 2000] ), and thus the work performed must not "materially increase the burden of the servient estate[ ] or impose new and additional burdens on the servient estate[ ]" ( Lopez, 69 A.D.3d at 1164, 895 N.Y.S.2d 532 ; see Shuttle Contr. Corp. v. Peikarian, 108 A.D.3d 516, 517, 968 N.Y.S.2d 179 [2d Dept. 2013] ). Relatedly, the servient landowner has a "corresponding right[ ] ‘to have the natural condition of the terrain preserved, as nearly as possible’ ... and ‘to insist that the easement enjoyed shall remain substantially as it was at the time it accrued, regardless of whether benefit or damage will result from a proposed change’ " ( L...