Appeals (1)
The essential facts underlying this matter, as alleged in the pleadings, gleaned from the records in these joined appeals or conceded in the parties’ briefs on appeal, follow. Plaintiffs are the owners of seven contiguous lots located in the Fraternaland subdivision in the Town of Schroon, Essex County.
In 1991, however, Caldwell placed a pole and chain gate across roadway E, preventing access to plaintiffs’ lots 11, 9, 7, 5, 3 and 1 and prompting plaintiffs to commence this аction pursuant to RPAPL article 15 to, inter alia, compel determination of their rights to the entire length of roadway E. In defendants’ answer, Caldwell asserted counterclaims: first, for judgment pursuant to RPAPL artiсle 15 determining that he is the fee owner of the land lying within the bed of mapped roadways E, G, H and I, and that any right plaintiffs may have to access their property over roadway E “is by virtue of user or other unrecorded rights” and extends no farther than the line separating lots 11 and 13; second, for judgment enjoining plaintiffs’ alleged trespass over the peninsula parcel for access to Paradox Lake. Plaintiffs’ untimely reply was rejected by defendants and this Court ultimately denied plaintiffs’
In March 1996, defendants moved for summary judgment dismissing the complaint and for judgment on the counterclaims. Concluding that the motion was really one for a default judgment based upon plaintiffs’ failure to serve a reply, but noting that dеfendants had not “extended [an] invitation” that “the * * * Court review the complaint as compared against the counterclaims and determine for itself whether the facts set forth in the cоunterclaims are put in issue by the complaint”, Supreme Court denied the motion by order entered December 3, 1997. Defendants appeal.
In January 1998, defendants moved, inter alia, for default judgment on the counterclaims and to dismiss the complaint, this time extending the “invitation” they had omitted on their prior motion. Plaintiffs cross-moved for summary judgment (1) declaring the existence of an easement over the entire lеngth of roadway E, (2) granting them title to a portion of the roadway by virtue of their alleged adverse possession, and (3) for an easement by prescription over the peninsula parcel. Concluding that defendants were entitled to default judgment on the counterclaims, and holding plaintiffs to their claim that the issues underlying the complaint and the counterclaims were the same, Supreme Court granted defendants judgment on default granting the relief demanded in the counterclaims and, based upon the doctrine of res judicata, dismissing the complaint as well. Supreme Court also denied plaintiffs’ cross motion. Plaintiffs appeal.
In our view, defendants’ unrelenting procedural machinations have transformed a relatively simple property dispute into a formidable tangle of erroneous legal theories. We reject essentially all of the contentions that defendants have advanced in connection with these appeals. Turning first to the question left unanswered on the prior appeal, we now determine that because defendants’ first counterclaim merely controverts the legal thеory underlying the complaint and
Furthermore, even if plaintiffs had been required to serve a reply, we agree with plaintiffs’ additional contention that defendants’ failure to seek a default judgment within one year after the default warranted dismissal of both counterclaims pursuant tо CPLR 3215 (c). Notably, because the counterclaims were asserted only by Caldwell, based upon his sole ownership of the peninsula parcel and the land lying within the bed of roadway E, the dеath of another defendant did not serve to toll the one-year period pending substitution of a personal representative. We conclude that the one-year period within which to seek a default judgment based upon plaintiffs’ failure to serve a timely reply conpnenced at the time of this Court’s decision on the prior appeal in May 1995, was not tоlled thereafter and expired long before defendants finally sought a default judgment in January 1998.
Addressing the merits of the complaint, we conclude that plaintiffs are entitled to an award оf summary judgment declaring that they, as the owners of lots 1, 3, 5, 7, 9, 11 and 13 of block E as shown on the subdivision map, possess a valid and existing easement for pedestrian and vehicular ingress and egress ovеr the entire length of roadway E, including the portion improved by Caldwell. Fundamentally, absent a showing of a contrary intent, when a deed of conveyance describes property by reference to a subdivision map that shows streets abutting the lot or lots conveyed, an easement by implication in those streets will pass with the grant (see, Heim v Conroy,
In view of the parties’ concession that each of the original dеeds of conveyance makes specific reference to the subdivision map and there being no evidence of any contrary intent on the part of the grantor-developer, we conclude that plaintiffs have established their right to the easement over roadway E (see, Will v Gates,
We are unpersuaded, however, by the balance of plaintiffs’ summary judgment motion. Plaintiffs failed to make out a prima facie showing of adverse possessiоn with regard to any portion of roadway E and so much of their motion as seeks a prescriptive easement over the peninsula property is dehors the pleadings. The parties’ remaining contentions have either been rendered academic or have been considered and found to be unavailing.
White, Spain, Carpinello and Graffeo, JJ., concur. Ordered that the order is affirmed, without costs. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as granted defendants’ motion for default judgment on their counterclаims and for dismissal of the complaint and fully denied plaintiffs’ cross motion for summary judgment; defendants’ motion denied and plaintiffs’ motion granted to the extent of declaring that the owners of lots 1, 3, 5, 7, 9, 11 аnd 13 of block E in the Fraternaland subdivision have a valid and existing easement by implication over roadway E; and, as so modified, affirmed.
Notes
. Extending from south to north away from the shore of Paradоx Lake, the parcels are designated lots 1, 3, 5, 7, 9,11 and 13 of Block E on a “Map of Subdivision of Fraternaland” dated July 14, 1924 (hereinafter the subdivision map).
. An “amended decision and order” entered July 27, 1998, which grants defendants the same relief as that contained in the March 30, 1998 judgment, is not at issue here.