Goldstein v. JonesGoldstein v. Jones
Plaintiff, the owner of a parcel of land in the Town of Olive, Ulster County, commenced this
As relevant to the instant controversy, the record discloses that Sherret Chase (hereinafter Chase) was the original owner of parcel 1 and also, as a member of the Chase family, a co-owner of a large tract of land to the east of parcel 2 from which parcels 3 and 4 were later created. When Chase sold parcel 1 to Stuhl and Werner, the April 1984 deed contained a provisiоn excepting and reserving ROW 1 for use by a “single family residence” as a means of ingress and egress to Peck Road. At the time that parcel 1 was conveyed by Chase, parcel 2 was apparently owned by Josephine Pratt Lumb, who conveyed the property to Out-of-Bounds Realty Corporation in a September 1990 deed that indicated it included ROW 1. Apparently as the result of a belief by the Chase family that they might have a property interest in parcel 2, they exchаnged quitclaim deeds with Out-
Following the service of plaintiff‘s complaint herein, defendants served an answer disputing plaintiff‘s right to use ROW 2 and setting forth, among other things, certain counterclaims and cross claims asserting that they had a right to utilize ROW 1 either as an easement appurtenant emanating from their chain of title or as a prescriptive easement. In their answer, Stuhl and Werner, among other things, maintained that neither plaintiff nor dеfendants were entitled to use ROW 1 for access.
Thereafter, plaintiff brought two motions for summary judgment, seeking, among other things, an order establishing her right to use ROW 1 and ROW 2 to access her property and barring defendants from claiming a right to utilize ROW 1. Defеndants cross-moved for summary judgment, requesting an order declaring that they have a nonexclusive right to use ROW 1, as well as an order enjoining plaintiff, Stuhl and Werner from interfering with their right to use ROW 1. Stuhl and Werner opposed these motions. In its decision and order, Supreme Court granted partial summary judgment in plaintiff‘s favor to the extent that it determined that she has valid easement rights to use ROW 1 and ROW 2. Further, the court denied defendants’ cross motion in its entirety, prompting this appeal by defendants.4
Initially, defendаnts claim that their cross motion for summary judgment with respect to their claimed right to use ROW 1 as an appurtenant easement conveyed to them when they purchased their property was improperly denied. In our view,
Nevertheless, defendants maintain that their claimed right to ROW 1 derives from the Chase family and, in that regard, offered proof in the fоrm of the 1997 quitclaim deeds, along with correspondence and documents exchanged between Chase and Out-of-Bounds‘s president in the mid-1980s and 1990s. They claim such proof is sufficient to show that, at the time that ROW 1 was created in 1984, the Chase family believed that they owned an interest in parcel 2 (see Matter of Estate of Thomson v Wade, 69 NY2d 570, 573 [1987]). While this proof certainly shows that, indeed, Chase did represent at various times that his family might have such an interest, it cannot be ignored that the record is devoid of any proof articulating a source or legitimate basis for that belief. In his affidavit, Chase states only that his belief was “due to vague and old property descriptions,” which were neither described nor attached. Moreover, no maps, deeds or other documents that might raise a question of fact in that regard were presented. To the contrary, the record only shows evidence of ownership and use of parcel 2 by Pratt Lumb‘s predecessors in title. In fact, the affidavits submitted by defendants in suрport of their request for summary judgment indicate that parcel 2 was owned by the Pratt Lumb family. For example, licensed land surveyor Bert Winne, who had familiarity with the area since the 1970s, averred that “[t]he lot in question now owned by [defendants] was the wоod lot belonging to the Pratt Lumb family.” Given the absence of proof supporting defendants’ contention that they acquired a legitimate interest in ROW 1 through the 1997 quitclaim deed wherein the Chase family purported to deed any interest in that parcel to
Next, we are unpersuaded that Supreme Court erred in concluding that questions of fact existed regarding defendants’ alternative claim for summary judgment that they acquired the right to utilize ROW 1 as a prescriptive easement. In order to prevail, defendants must demonstrate, by clear and convincing evidence, that the right-of-way over parcel 1 was hostile, open, notorious and continuous over an “unbroken 10-year period” prior to commencement of the proceeding (Alexy v Salvador, 217 AD2d 877, 879 [1995]; see Cole v Rothe, 18 AD3d 1058, 1059 [2005]; Allen v Mastrianni, 2 AD3d 1023, 1024 [2003]). Here, in support of that position, defendants include, among other things, the aforementioned affidavit of Winne, who stated that ROW 1 across parcel 1 was formerly an old logging road and an entrance from parcel 1 to Peck Road that existed as early as the 1970s. In addition, Peter Lumb averred that he recalled using ROW 1 with his grandfather, George W. Pratt, prior tо 1953. Like Winne, he stated that the path was improved and used over the years by his family in order to take wood from parcel 2. Both Lumb and Winne indicated that ROW 1 was the only means of accessing parcel 2. While we agree with defendants that this proof was sufficient to meet their initial burden on their summary judgment motion, the proof submitted in opposition by Stuhl indicated that there was no evidence of a road “or path of any kind” when she and Werner purchased their property. Further, shе stated that ROW 1 did not exist until 1984 when Chase cut a path to create ROW 1. We find this proof sufficient to create arguable issues of fact on the issue of prescriptive use or possible abandonment of an existing easement that should be resolved at trial (see Knapp v Hughes, 25 AD3d 886, 891 [2006]).
Finally, we conclude that Supreme Court properly granted partial summary judgment to plaintiff with respect to her right to access ROW 2 over defendants’ property. Even assuming, for the sake of argument, that there rеmained a question as to the Chase family‘s possible ownership interest in parcel 2, resolution of that issue would not be necessary to determine that plaintiff gained the right to utilize ROW 2 from either of the
The remaining arguments advanced by defendants have been examined and found to be either lacking in merit or unnecessary to reach in light of the above disposition.
Mercure, Crew III, Peters and Mugglin, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by granting plaintiff summary judgment dismissing the counterclaim оf defendants Jonathon D. Jones and Adile M. Jones that they possess a deeded right-of-way over property owned by defendants Michelle Stuhl and Howard Werner, and, as so modified, affirmed.