Rosen v. MosbyRosen v. Mosby
The parties own adjoining properties located in the Town of Ancram, Columbia County. Plaintiff purchased his property in 1989 and his deed includes the grant of “the right of ingress and egress . . . over: A [50-]foot[-]wide roadway” that is particularly described by metes and bounds. Plaintiff‘s deed further provides that the easement is “[s]ubject to a road maintenance agreement dated August 16, 1988.” The duly recorded 1988 maintenance agreement was a declaration by the
In March 1990, the maintenance agreement was amended because “the roadway as actually constructed and laid out on the ground varied somewhat from the layout of the roadway as depicted” on the map referenced in the maintenance agreement. Consequently, the amendment “deemed . . . the roadway as actually constructed and laid out on the ground” to be the roadway that was the subject of the maintenance agreement. Further, the amendment provided that the easement referenced in the maintenance agreement was “the width of the roadway and drainage ditches adjacent thereto as . . . actually constructed” to be the roadway that was the subject of the maintenance agreement. In November 1990, after plaintiff agreed to and executed the amendment, it was recorded.
In 2011, defendant purchased her property, which is located across the road from plaintiff‘s property. Defendant‘s deed also included and was subject to the “right of ingress and egress” as shown on the original subdivision map, the maintenance agreement and the 1990 amendment to the maintenance agreement. In the spring of 2012, defendant cleared and graded an area located on the western edge of her property and installed a stockade fence along the private road. Plaintiff then commenced this action alleging six causes of action —the first four pursuant to the
We first turn to Supreme Court‘s dismissal of plaintiff‘s first four causes of action, in which plaintiff essentially alleged that defendant interfered with his deeded easement rights, delineated in the 50-foot-wide easement area for a period of 25 years, and that the fence erected by defendant blocked that right-of-way. “It is well settled that 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” (Boice v Hirschbihl, 128 AD3d 1215, 1216 [2015] [internal quotation marks, brackets and citations omitted]; see Shelmerdine v Myers, 143 AD3d 1200, 1200 [2016]). “[W]here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” (Lewis v Young, 92 NY2d 443, 449 [1998]; accord Thibodeau v Martin, 119 AD3d 1015, 1016 [2014]; Sullivan v Woods, 70 AD3d 1286, 1287 [2010]). If “‘an easement is definitively located, by grant or by use, its location cannot be changed by either party unilaterally‘” (Estate Ct., LLC v Schnall, 49 AD3d 1076, 1077 [2008], quoting Clayton v Whitton, 233 AD2d 828, 829 [1996]).
Here, in support of his claim that he is entitled to judgment as a matter of law on his first four causes of action, plaintiff relied on the language in his deed, defendant‘s deed and a survey map. In opposition, defendant relied on the deeds, the maintenance agreement and the amendment to the maintenance agreement. Defendant further submitted affidavits by the subdivision developer and former property owners to establish that the originally proposed private roadway was rerouted in response to field conditions and that the maintenance agreement was amended to reflect the actual location of the easement for ingress and egress. Defendant‘s submissions confirm that the proposed road followed a relatively straight route through the subdivision and ended at a cul-de-sac, while the actual road follows the proposed road for a distance before veering to the west, away from defendant‘s property and onto plaintiff‘s parcel.2
Plaintiff‘s deed grants a right of ingress and egress over a 50-foot-wide roadway identified with a metes and bounds description and with reference to proposed subdivision map number 9951 (see Marsh v Hogan, 56 AD3d 1090, 1092 [2008]). However, plaintiff‘s deed is expressly subject to the maintenance agreement, which references a proposed subdivision map number 10423 that depicts the same roadway as described in plaintiff‘s deed.3 Accordingly, by accepting the deed, plaintiff agreed to be “bound by and considered as having accepted and agreed to [the] protective covenants and restrictions” set forth in the maintenance agreement. In addition, when he executed the amendment to the maintenance agreement, plaintiff agreed that the as-built private roadway was “deemed” to be the location of the easement for ingress and egress.
In our view, plaintiff‘s deed clearly evinces that the intent of the easement was to provide a right of ingress and egress. Although plaintiff correctly argues that his deed fixed the loca-
It follows that Supreme Court also properly dismissed plaintiff‘s fourteenth cause of action seeking a declaratory judgment that he may modify the easement to bar access to his property to defendant, her invitees, agents and guests. By this cause of action, plaintiff alleged that he agreed to the private roadway easement burdening his property because he believed that he maintained a right to access defendant‘s property. Plaintiff asserts that if defendant can build a fence to block his access, he should have the authority to modify the existing private roadway easement to prevent defendant from using that portion of the roadway that burdens his property. “[A]n easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession” (Gerbig v Zumpano, 7 NY2d 327, 330 [1960] [emphasis omitted]; see Dutcher v Allen, 93 AD3d 1101, 1103 [2012]). Contrary to his assertions, plaintiff cannot unilaterally change the location of the existing private roadway easement —the location of which was fixed by the deed, the maintenance agreement and the amendment to the maintenance agreement (see Estate Ct., LLC v Schnall, 49 AD3d at 1077). Thus, defendant was entitled to summary judgment dismissing plaintiff‘s fourteenth cause of action.
Next, we find that Supreme Court properly dismissed plaintiff‘s twelfth cause of action for conversion, in which he alleges that defendant removed a wooden signpost, identifying her lot number, that has been posted at the foot of her driveway, but on his property, for “ten years or more.” A cause of action for conversion exists where the plaintiff has a “possessory right or interest in the property” and the defendant has “dominion over the property or interfere[s] with it, in deroga-
We reject plaintiff‘s argument that the order entered in August 2014 violated the law of the case doctrine. First, “[t]he doctrine applies only when the prior ruling directly passed upon a question of law that is essential to the determination of the matter” (Karol v Polsinello, 127 AD3d 1401, 1402 [2015]; see Scofield v Trustees of Union Coll., 288 AD2d 807, 808 [2001]). The observation that defendant did not have a viable defense “as a matter of law” was not necessary to the court‘s ruling on defendant‘s motion to compel discovery and, thus, Supreme Court was not required to give preclusive effect to such language. Nor does the doctrine apply where, as here, a motion for summary judgment follows a motion to dismiss that was not converted to a motion for summary judgment pursuant to
Finally, plaintiff‘s arguments with regard to “paper streets,” raised for the first time on appeal, is not preserved for our review (see Matter of Regan v DiNapoli, 135 AD3d 1225, 1228 [2016], lv denied 27 NY3d 913 [2016]; Wells Fargo Bank, N.A. v Vasiliou, 127 AD3d 1351, 1352 [2015]). We have considered the parties’ remaining arguments and find that they are either
McCarthy, J.P., Egan Jr. and Mulvey, JJ., concur; Lynch, J., not taking part. Ordered that the appeals from the orders entered October 6, 2014 and June 17, 2015 are dismissed. Ordered that the orders entered April 23, 2014, August 7, 2014 and January 9, 2015 are affirmed, with costs to defendant.