Opinion
64003
08-29-2019
ELM LANSING REALTY CORP., Plaintiff, v. George S. KNAPP, Michael J. Edie, June B. Edie, Gary J. Edie, North Tract Properties, LLC and Casa Rocce, LLC, Defendants.
Richard J. Herrmann, Jr., Clifton Park, for plaintiff. Donald Zee, P.C., Albany (Linda S. Leary of counsel), for defendant George S. Knapp. Miller, Mannix, Schachner & Hafner, LLC, Round Lake (Thomas W. Peterson of counsel), for defendant Gary J. Edie. Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Mark E. Cerasano of counsel), for defendants North Tract Properties, LLC and Casa Rocce, LLC.
Richard J. Herrmann, Jr., Clifton Park, for plaintiff.
Donald Zee, P.C., Albany (Linda S. Leary of counsel), for defendant George S. Knapp.
Miller, Mannix, Schachner & Hafner, LLC, Round Lake (Thomas W. Peterson of counsel), for defendant Gary J. Edie.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Mark E. Cerasano of counsel), for defendants North Tract Properties, LLC and Casa Rocce, LLC.
Robert J. Muller, J.
Plaintiff is the owner of a 1.25 vacant parcel of land in the Town of Queensbury, Warren County. The land is bound to the east by Hannaford Road and then traverses west over Pilot Knob Road to a 15-foot strip of lakefront on the shore of Lake George, which lakefront includes a dock. Defendant George Knapp owns a vacant parcel of land on Hannaford Road immediately north of and adjacent to that of plaintiff. Defendants Gary Edie (hereinafter Edie), North Tract Properties LLC (hereinafter North Tract) and Casa Rocce, LLC own vacant parcels of land on Hannaford Road immediately north of and adjacent to that of Knapp. Each of these properties is located in what was once a 9-lot subdivision owned by E. Louis Bauer. Plaintiff's land encompasses the majority of Lot No. 7 and its predecessors in title granted easements over the lakefront portion of the property to defendants' predecessors in title. While the parameters of the easements differed slightly, each included the right to use and enjoy the waters of Lake George.
Although not entirely clear from the record, it appears that Pilot Knob Road is a public road owned by the Town of Queensbury.
Plaintiff purchased its land from the County of Warren in a tax foreclosure sale, with the land conveyed via quitclaim deed dated November 23, 2015 and recorded on December 3, 2015. Plaintiff thereafter commenced this action pursuant to RPAPL article 15 on June 2, 2017, seeking a judgment declaring that defendants have no easement rights over any portion of its property. Plaintiff further seeks monetary damages of $75,000.00 from Knapp and Edie, respectively, for an alleged diminution in the value of its property. Issue has been joined with defendants each asserting a counterclaim and cross claim for a judgment declaring that their respective easement rights are valid and enforceable.
Presently before the Court is (1) plaintiff's motion for bifurcation of the damages portion of the trial and for summary judgment as to the remaining relief requested in the complaint; (2) North Tract and Casa Rocce's cross motion for summary judgment dismissing the complaint as against them and granting the relief requested in their respective counterclaims and cross claims; (3) Edie's cross motion for summary judgment dismissing the complaint as against him and granting the relief requested in his counterclaim and cross claim; and (4) Knapp's cross motion for summary judgment dismissing the complaint as against him and granting the relief requested in his counterclaim and cross claim or, in the event summary judgment is denied, for leave to amend his answer. The motion and cross motions will be addressed ad seriatim .
Plaintiff's Motion for Bifurcation and Summary Judgment
At the outset, there has been no opposition to that aspect of plaintiff's motion which seeks bifurcation of the damages portion of the trial. This aspect of the motion is therefore granted (see CPLR 603 ).
Turning now to the second aspect of the motion, a party seeking summary judgment must establish its entitlement to judgment as a matter of law by admissible proof (see Gilbert Frank Corp. v. Federal Ins. Co. , 70 NY2d 966, 967 [1988] ; Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v. City of New York , 49 NY2d 557, 560 [1980] ).
Here, plaintiff has submitted a copy of its deed which provides, inter alia , that the conveyance is subject "to all existing tenancies, easements, rights, licenses, privileges, and agreements, as well as any covenants, conditions, restrictions, reservations, rights of re-entry, possibilities of reverter, rights-of-way, utility or other easement agreements, or sell-offs in former deeds or other instruments of record" [Quitclaim Deed, attached as Schedule "F" to Herrmann Affidavit, at p. 1]. Plaintiff has also submitted the affidavit of Richard J. Herrmann, Jr., Esq., its sole owner and president, who discusses the easement rights of each defendant respectively, beginning with Edie. Herrmann states that defendant June B. Edie passed away, leaving her property to Edie and his brother, defendant Michael J. Edie, and that Michael Edie then conveyed his interest in the property to Edie, who is now the sole owner of the property. Herrmann further states as follows:
The Court notes that many of the documents under consideration herein have been attached as exhibits to not only the motion, but also the several cross motions. With that said, rather than listing every location of any given document, the Court will cite only its location in the motion or cross motion being addressed.
"Upon information and belief, ... Edie[ ] obtained title to this property by deed, document number 4535, recorded in Liber 1379 at page 104. The Edie property is not lakefront property.
"Upon information and belief Edie's predecessors in title had obtained a non-exclusive easement including a dock, boating and swimming rights over a 15-foot wide strip of land located along the most southerly portion of [L]ot 7 ....
"It is noted that this easement ... was expressly terminated by deed recorded in Liber 475 at page 323" [Herrmann Affidavit, at ¶¶ 21-23].
Plaintiff submits a copy of the deed terminating the easement, which deed is dated October 19, 1966 and conveys land from Louis Didio and his wife, Eleanor Didio, John Edie and his wife, June Edie, and Charles Didio and his wife, Minnie Didio, to Robert B. Bauer and his wife, Doris Bauer, stating: "It being the intention of the parties of the first part to quitclaim and release any and all interest in and to an easement or right of way over the premises above described," describing said premises as an "easement ... 15 feet wide located on the southerly side of [L]ot No. 7 ... " [Indenture, attached as Schedule "J" to Herrmann Affidavit, at p. 1].
According to Herrmann, "[t]hereafter two (2) deeds, which conveyed the southerly 10-foot portion of [L]ot 7 including most of the area which had been formerly encumbered by [the] easement, were recorded" [Herrmann Affidavit, at ¶ 25], and "[t]hereafter another [deed] running from [the] Bauer[s] to [the] Didio[s,] Edie[s and] Didio[s] was recorded[, which deed] gives permission for ingress and egress together with a right to erect a dock and boating and swimming over a 15-foot strip of land to the predecessors in title of [Edie], North Tract ... and Casa Rocce[, with the] location of this strip [being] 10 feet northerly of the southerly lot line of [L]ot 7 , (10 feet northerly from [L]ot 8)" [Herrmann Affidavit, at ¶ 26]. Plaintiff contends, however, that the easement granted in this deed is invalid as a matter of law because (1) the grantors — namely, Robert and Doris Bauer — did not own title to the dominant estate when the easement was created; and (2) it fails to describe any dominant estate.
The merits of these contentions notwithstanding, plaintiff has not submitted a copy of the deed creating the new easement — nor has it submitted a copy of the deed by which Edie obtained title to his property or any of the deeds by which Edie's predecessors obtained title to the property. As such, the Court is unable to make any findings as a matter of law. It must also be noted that Herrmann's statements with respect to the deeds by which Edie and his predecessors obtained title to the property are made upon information and belief and, as such, are of no probative value (see Oswald v. Oswald , 107 AD3d 45, 49 [2013] ; Lockwood v. Layton , 79 AD3d 1342, 1344 [2010] ; Anderson v. Livonia, Avon & Lakeville R.R. Corp. , 300 AD2d 1134, 1135 [2002] ; Onondaga Soil Testing v. Barton, Brown, Clyde & Loguidice , 69 AD2d 984, 984 [1979] ).
Under the circumstances, the Court finds that plaintiff has failed to meet its prima facie burden of establishing its entitlement to summary judgment with respect to Edie. As such, the Court need not consider his opposition to this aspect of the motion (see Vogler v. Perrault , 149 AD3d 1298, 1299 [2017] ; Batzin v. Ferrone , 140 AD3d 1102, 1104 [2016] ).
Herrmann next discusses the easement rights of North Tract and Casa Rocce, respectively, stating that "[u]pon information and belief [their predecessors in title] obtained a non-exclusive easement for access, dock, boating and swimming rights over a 15-foot wide strip of land located along the most southerly portion of [L]ot 7 ... " [Herrmann Affidavit, at ¶¶ 31, 38]. Plaintiff then makes the same argument it made with respect to Edie, namely that North Tract and Casa Rocce's easement rights were expressly terminated in the October 19, 1966 deed and, while the subsequent deed purported to create a new easement, that deed was invalid as a matter of law.
Plaintiff has submitted a copy of the deed by which North Tract obtained title to its property from Patricia Pensel, which deed is dated July 26, 2013 and recorded on July 29, 2013. The deed provides, in pertinent part:
"[a]lso convey[ed] to the party of the second part [is] the right and privilege to use a fifteen foot right of way located at the southerly portion of Lot No. 7 as shown on a map heretofore described for the purpose of ingress and egress to the shores of Lake George, together with the right and privilege to erect a dock for the purpose of boating and/or swimming" [Warranty Deed, attached as Exhibit "A" to North Tract Answer attached as Schedule "D" to Herrmann Affidavit, at p. 2].
The Court notes that this deed appears to erroneously include the easement terminated in the October 19, 1966 deed from Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio to Robert and Doris Bauer.
Plaintiff has likewise submitted a copy of the deed by which Casa Rocce obtained title to its property from Donna O'Brian, Michael Didio, Denise Buher, Joseph Didio and Peter Didio, which deed is dated February 10, 2011 and recorded on February 11, 2011. This deed includes an "easement for the purpose of engress [sic] and ingress to the shores of Lake George together with the right and privilege to erect a dock for the purpose of boating and/or swimming on the lake, over [L]ot No. 7" with such "fifteen foot easement or right of way ... a distance of 10 feet northerly from Lot No. 8 which [L]ot was formerly conveyed to Jonathan Spierre and Grace Spierre" [Warranty Deed, attached as Exhibit "A" to Casa Rocce Answer attached as Schedule "E" to Herrmann Affidavit, at p. 3].
Plaintiff, however, has failed to submit copies of the deeds by which the predecessors to North Tract and Casa Rocce obtained title to the properties. Further — and as noted above — while plaintiff submitted a copy of the October 19, 1966 deed expressly terminating the original easement, he failed to submit a copy of the deed creating the new easement. Finally, Herrmann's statements are again made upon information and belief and, as such, of no probative value (see Oswald v. Oswald , 107 AD3d at 49 ; Lockwood v. Layton , 79 AD3d at 1344 ; Anderson v. Livonia, Avon & Lakeville R.R. Corp. , 300 AD2d at 1135 ; Onondaga Soil Testing v. Barton, Brown, Clyde & Loguidice , 69 AD2d at 984 ).
The Court therefore finds that plaintiff has also failed to meet its prima facie burden of establishing its entitlement to summary judgment with respect to North Tract and Casa Rocce. As such, the Court need not consider their opposition to this aspect of the motion (see Vogler v. Perrault , 149 AD3d at 1299 ; Batzin v. Ferrone , 140 AD3d at 1104 ).
Lastly, Herrmann discusses Knapp, stating as follows:
"Upon information and belief, ... Knapp[ ] obtained title to [his] property by deed, recorded in Liber 1191 at page 110. Knapp's ... property is not lakefront property.
"Upon information and belief Knapp's predecessors in title had obtained a non-exclusive easement to the shore of Lake George to use and enjoy the shore and water. Although the grantor had previously given numerous easements to others which easements included the right to erect a dock and for boating and swimming, this easement to Knapp's predecessors in title specifically and expressly did not include the right to erect a dock for boating and swimming. Upon information and belief, one reason this intentional omission occurred was because four (4) other lots, not including the grantors lot had already been given the right to erect a dock and for boating and there was simply no physical way for this to be accomplished.....
"Upon information and belief, ... Knapp's predecessors in title requested permission from the previous owners of [L]ot 7 ... to erect a dock and for boating and this permission was granted. [S]ince this use was with permission it could be terminated at any time by the owners of [the L]ot and said permission has been terminated by [p]laintiff" [Herrmann Affidavit, at ¶¶ 46-48].
Again, plaintiff has failed to submit a copy of the deed by which Knapp obtained title to his property or any of the deeds by which Knapp's predecessors obtained title to the property. Plaintiff has further failed to submit the affidavit of anyone with personal knowledge as to the alleged permission given to Knapp by the previous owners of its property. As noted above, Herrmann's statements upon information and belief are wholly insufficient (see Oswald v. Oswald , 107 AD3d at 49 ; Lockwood v. Layton , 79 AD3d at 1344 ; Anderson v. Livonia, Avon & Lakeville R.R. Corp. , 300 AD2d at 1135 ; Onondaga Soil Testing v. Barton, Brown, Clyde & Loguidice , 69 AD2d at 984 ).
The Court therefore finds that plaintiff has failed to satisfy its prima facie burden of establishing its entitlement to summary judgment with respect to Knapp. As such, the Court need not consider his opposition to this aspect of the motion (see Vogler v. Perrault , 149 AD3d at 1299 ; Batzin v. Ferrone , 140 AD3d at 1104 ).
Briefly, Herrmann also states "upon information and belief" that defendants never utilize their purported dominant estates to access the dock on plaintiff's property [Herrmann Affidavit, at ¶¶ 28, 36, 43, 51], but instead access the dock by driving to Pilot Knob Road and parking their vehicles on the side of the street. Plaintiff contends that such conduct is impermissible as a matter of law, as the servient estate must be accessed from the dominant estate. Again, Herrmann's "upon information and belief" statements are of no probative value and, as such, the merits of the contention need not be addressed. The contention appears to be without merit in any event, as the Court is unaware of any case law finding such conduct impermissible as a matter of law.
Based upon the foregoing, that aspect of plaintiff's motion seeking summary judgment is denied in its entirety.
North Tract and Casa Rocce's Cross Motion for Summary Judgment
North Tract and Casa Rocce contend that they are entitled to summary judgment dismissing the complaint as against them and granting their respective counterclaims and cross claims seeking a declaration that their easement rights are valid and enforceable.
In support of their cross motion, defendants have submitted the affidavit of their attorney — Mark E. Cerasano, Esq. — who states that North Tract and Casa Rocce "are comprised of members of the Didio family which, to the extent relevant to this proceeding, acquired the properties each presently owns from the Bauer family" [Cerasano Affidavit, at ¶ 10]. Specifically, by deed dated August 6, 1953 and recorded on August 11, 1953, E. Louis Bauer conveyed to Louis Didio "a major portion of Lot 1, and all of Lots 2, 3 and 4" [Cerasano Affidavit, at ¶ 11]. Then, by deed dated August 21, 1965, Robert and Doris Bauer conveyed to Louis and Eleanor Didio "the lands lying east of Lots 1, 2 and 4" [Cerasano Affidavit, at ¶ 12], together with "the right and privilege to use a fifteen foot right of way located at the southerly portion of Lot No. 7 ... for the purpose of ingress and egress to the shores of Lake George together with the right and privilege to erect a dock for the purpose of boating and/or swimming" [Deed Abstract, attached as Exhibit "F" to Cerasano Affidavit, at p. 2].
On that same date, Robert and Doris Bauer conveyed to Charles and Minnie Didio "all of the lands ... easterly of Lot 3 ... together with the right-of-way granted to Louis and Eleanor Didio and described ... above" [Cerasano Affidavit, at ¶ 13]. Also on that same date, Robert and Doris Bauer conveyed certain lands to William A. Bacas and John Edie, respectively, again "includ[ing] the same right-of-way granted to the Didios" [Cerasano Affidavit, at ¶ 14].
According to Cerasano, "[a]pproximately one year later on October 19, 1966, [Robert and Doris Bauer] conveyed to Jonathan E. Spierre and his wife, Grace Spierre, Lot 8[, together with] a strip of land along the southerly boundary of Lot 7 measuring 10 feet in width and 180 feet in length and running from the easterly boundary of Lot 7 to the easterly side of Pilot Knob Road" [Cerasano Affidavit, at ¶ 16]. It appears undisputed that the strip of land conveyed to the Spierres included a portion of the right-of-way which Robert and Doris Bauer previously granted to Louis and Eleanor Didio, Charles and Minnie Didio, Bacas and Edie. As such, certain additional deeds were executed on October 19, 1966, namely (1) Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio conveyed to Robert and Doris Bauer the right of way previously granted to them, thereby terminating the easement; and (2) Robert and Doris Bauer conveyed to Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio "[a]n easement for the purpose of egress and ingress to the shores of Lake George together with the right and privilege to erect a dock for the purpose of boating and/or swimming on the lake, over [L]ot [N]o. 7" [Deed Abstract, attached as Exhibit "M" to Cerasano Affidavit, at p. 1]. These deeds are discussed hereinabove in the context of plaintiff's motion, although plaintiff failed to disclose — perhaps purposefully — that all deeds were executed on the same day as part of the same transaction.
North Tract and Casa Rocce contend that the new easement created in the October 19, 1966 deed from Robert and Doris Bauer to Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio is valid as "[t]he owner of land and the person having a right-of-way over it may ... change the route or location of the way by mutual consent or agreement" ( 49 NY Jur 2d, Easements § 96 ).
The merits of this contention notwithstanding, the Court finds that North Tract and Casa Rocce have failed to satisfy their prima facie burden of establishing their entitlement to summary judgment as a matter of law. At the outset, while North Tract and Casa Rocce attached copies of the deeds by which they obtained title to their respective properties, they submitted only abstracts of the other deeds discussed in their papers. These abstracts present only typed representations of what was contained in the original deeds with no indication of whether the deeds were signed or even recorded. It appears that they were prepared by Mountain Abstract Company, Inc., which the Court has gleaned from the abstracts themselves. There is no affidavit from the individual at Mountain Abstract Company who presumably examined the original deeds and then prepared the abstracts. The Court therefore finds that such abstracts are not in admissible form (see Miller v. Powers , 53 AD3d 1125, 1128 [2008] ; Dewey v. Gardner , 248 AD2d 876, 878 [1998] ).
Further, notwithstanding the several deed abstracts submitted, the chain of title for North Tract and Casa Rocce, respectively, remains unclear. While the Court does not purport to be a title expert, it cannot ascertain which property is presently owned by which entity and whether that property enjoys the easement rights granted over Lot No. 7 in the October 19, 1966 deed from Robert and Doris Bauer to Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio. Indeed, North Tract's deed — which appears to convey two parcels — references, inter alia , an April 21, 1993 deed from Louis and Eleanor Didio to Pensel, which deed is not included in the record. Likewise, Casa Rocce's deed — which appears to convey four parcels — references, inter alia , two deeds dated April 29, 1985, neither of which are included in the record. Given the virtual morass of deeds and parcels and owners, findings simply cannot be made as a matter of law.
To the extent that North Tract and Casa Rocce have failed to meet their prima facie burden of establishing their entitlement to summary judgment, the Court need not consider plaintiff's opposition to their cross motion (see Vogler v. Perrault , 149 AD3d at 1299 ; Batzin v. Ferrone , 140 AD3d at 1104 ).
Based upon the foregoing, North Tract and Casa Rocce's cross motion for summary judgment is denied in its entirety.
Edie's Cross Motion for Summary Judgment
Edie contends that he is entitled to summary judgment dismissing the complaint as against him and granting his counterclaim and cross claim seeking a declaration that his easement rights are valid and enforceable.
In support of his cross motion, Edie has submitted the affidavit of his attorney — Thomas W. Peterson, Esq. — which clearly sets forth the chain of title relative to Edie's property and attaches copies of all relevant deeds, together with proof of recording. Specifically, Peterson has attached copies of:
(1) the August 21, 1965 deed from Robert and Doris Bauer to John and June Edie, which deed conveys to the parties of the second part and "their heirs and assigns forever ... the right and privilege to use a fifteen foot right of way located at the southerly portion of [L]ot No. 7 ... for the purpose of ingress and egress to the shores of Lake George together with the right and privilege to erect a dock for the purpose of boating and/or swimming" [Indenture, attached as Exhibit "C" to Peterson Affidavit, at p. 1].
(2) the October 19, 1966 deed from Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio to Robert and Doris Bauer, as described hereinabove, which terminated the easement on the southerly side of Lot 7;
(3) the October 19, 1966 deed from Robert and Doris Bauer to Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio, as described hereinabove, granting the "parties of the second part, their heirs, and assigns forever ... an easement for the purpose of engress [sic] and ingress to the shores of Lake George together with the right and privilege to erect a dock for the purpose of boating and/or swimming on the lake, over [L]ot [N]o. 7 ... at a point which is located 10 feet from the southeasterly corner of said [L]ot [N]o. 7" [Indenture, attached as Exhibit "E" to Peterson Affidavit, at p. 1];
(4) the October 19, 1966 deed from Robert and Doris Bauer to Jonathan and Grace Spierre, as described hereinabove, conveying, inter alia , the southerly portion of Lot 7;
(5) the April 6, 2000 deed from John and June Edie to the June B. Edie Revocable Trust, conveying the property "together with the appurtenances and all the estate and rights of the [g]rantor[s] in and to [the] premises" [Warranty Deed, attached as Exhibit "G" to Peterson Affidavit, at p. 1];
(6) the April 5, 2004 deed from the June B. Edie Revocable Trust to Edie and Michael Edie, conveying the property "together with the appurtenances and all the estate and rights of the [g]rantor in and to [the] premises" [Trustee's Deed, attached as Exhibit "H" to Peterson Affidavit, at p. 3];
It should be noted that the Schedule A attached to this deed erroneously includes the easement terminated on October 19, 1966.
and
(7) the July 25, 2018 deed from Edie and Michael Edie to Edie, conveying the property "together with the appurtenances and all the estate and rights of the [g]rantor in and to [the] premises" [Quitclaim Deed, attached as Exhibit "I" to Peterson Affidavit, at p. 1].
Additionally, insofar as plaintiff has alleged in the complaint that Edie's easement has been abandoned, Edie contends "that nonuse[ ] alone, no matter how long continued, can ever in and of itself extinguish an easement created by grant" ( Gerbig v. Zumpano , 7 NY2d 327, 331 [1960] ). "In order to prove an abandonment it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement" (id. ). Here, it is undisputed that there has been no overt act of abandonment by Edie or any other defendant.
Under the circumstances, the Court finds that Edie has amply satisfied his initial burden of demonstrating his entitlement to summary judgment, thus shifting the burden to plaintiff to raise a triable issue of fact (see Reilly v. Achitoff , 135 AD3d 926, 927 [2016] ; Corrarino v. Byrnes , 43 AD3d 421, 423 [2007] ).
None of the defendants have appeared in opposition to this or any other cross motion.
In this regard, plaintiff contends — as noted above — that the easement contained in the October 19, 1966 deed from Robert and Doris Bauer to Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio is invalid because the grantors did not own the dominant estate when the easement was created. The Court finds, however, that this contention is without merit.
It is true that "New York adheres to the majority rule that a grantor cannot create an easement benefitting land not owned by the grantor" ( Dichter v. Devers , 68 AD3d 805, 806 [2009] ; see Matter of Estate of Thomson v. Wade , 69 NY2d 570, 573-574 [1987), and it is undisputed that Robert and Doris Bauer did not own the dominant estate upon execution of the October 19, 1966 deed creating the new easement. Rather, it was owned — at that time, anyway — by Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio. It had been owned by Robert and Doris Bauer approximately one year earlier when the original easement was granted.
It is in this context the Court observes that, " ‘in the construction of deeds, ... the language of a deed must be so interpreted and applied as to be meaningful and valid, and the intent of the parties, as evidenced by the deed and the circumstances surrounding the making thereof, must be given expression wherever it is possible to do so without violating law and reason’ " ( 328 Owners Corp. v. 330 W. 86 Oaks Corp. , 8 NY3d 372, 381 [2007], quoting 4 Warren's Weed, New York Real Property, Deeds § 37.02 [5th ed]; see Webster v. Ragona , 7 AD3d 850, 853-854 [2004] ). Here, it is clear that — in simultaneously executing the two deeds on October 19, 1966, one terminating the original easement and the other creating the new easement — the parties were, in essence, relocating the easement — as they were entitled to do (see 49 NY Jur 2d, Easements § 96 ). Indeed, the October 19, 1966 deed from Robert and Doris Bauer to Louis and Eleanor Didio, Charles and Minnie Didio and John and June Edie specifically stated:
"It is ... understood and the intention of the parties of the first part [that] the easement or right of way granted herein to the parties of the second part is in consideration of the parties of the second part reconveying their right, title and interest in and to a right of way located at the southerly portion of said [L]ot [N]o. 7, said right of way having been heretofore granted unto the parties of the second part by the parties of the first part in August 1965" [Indenture, attached as Exhibit "E" to Peterson Affidavit, at p. 1].
Plaintiff next contends that the easement contained in the October 19, 1966 deed from Robert and Doris Bauer to Louis and Eleanor Didio, John and June Edie and Charles and Minnie Didio is invalid because it fails to describe the dominant estate. This contention is also without merit. Given the reference to the August 1965 deed conveying the dominant estate, such estate was adequately described.
Based upon the foregoing, the Court finds that plaintiff has failed to raise a triable issue of fact in opposition to Edie's cross motion for summary judgment. The cross motion is therefore granted in its entirety.
Knapp's Cross Motion for Summary Judgment and Leave to Amend his Answer
With respect to the first aspect of the cross motion, Knapp contends that he is entitled to summary judgment dismissing the complaint as against him and granting his counterclaim and cross claim seeking a declaration that his easement rights are valid and enforceable.
In support of this contention Knapp and James M. White — with whom he purchased the property in 1987 — have each submitted an affidavit. White subsequently conveyed the property to Knapp in 2000, who is now the sole owner. Attached to their affidavits are copies of:
(1) the December 3, 1965 deed from William A. Bacas to Louis Didio "conveying to the party of the second part an easement or right of way for the purpose of enabling the party of the second part to have the use and enjoyment of the shore and waters on Lake George[, with] said easement to be 15 feet wide located on the southerly side of [L]ot No. 7" [Indenture, attached as Exhibit "8" to Knapp Cross Motion, at p. 1];
(2) the October 19, 1966 deed from Louis and Eleanor Didio, Charles and Minnie Didio and John and June Edie to Robert and Doris Bauer, as described hereinabove, which terminated the easement on the southerly side of Lot 7;
(3) the October 9, 1987 deed from Louis Didio to James White and Knapp "conveying to the party of the second part an easement or right of way for the purpose of enabling the party of the second part to have the use and enjoyment of the shore and waters on Lake George[, with] said easement to be 15 feet wide located on the southerly side of [L]ot No. 7" [Indenture, attached as Exhibit "1" to Knapp Cross Motion, at p. 1]; and
(4) the November 7, 2000 deed from James White to Knapp, conveying the same 15-foot easement on the southerly side of Lot No. 7.
According to Knapp, the October 19, 1966 deed terminating the easement is not applicable to him, as it pertains only to the easement rights previously granted by Robert and Doris Bauer — and the easement rights in his deed were granted by William Bacas. With that said, however, Knapp has failed to include a copy of the deed whereby his property was conveyed to Bacas. Incidentally, the abstract of this deed is attached to Cerasano's affidavit and such abstract indicates that the property was conveyed to Bacas by Robert and Doris Bauer on August 21, 1965. As such, it appears that the October 19, 1966 deed terminating the easement may in fact be applicable to Knapp, thus rendering the easement granted in the October 9, 1987 and November 7, 2000 deeds incorrect.
Briefly, if the October 19, 1966 deed terminating the easement is not applicable to Knapp — as he contends — then his easement is on the property deeded to Jonathan and Grace Spierre, not on plaintiff's property. His contention in this regard is thus perplexing, as it would seem to contradict his position that he has an express easement over the dock on plaintiff's property.
In any event, under the circumstances the Court finds that Knapp has failed to satisfy his prima facie burden of demonstrating his entitlement to summary judgment and, as such, the Court need not consider plaintiff's opposition (see Vogler v. Perrault , 149 AD3d at 1299 ; Batzin v. Ferrone , 140 AD3d at 1104 ).
Based upon the foregoing, Knapp's cross motion seeking summary judgment is denied.
Turning now to the second aspect of the cross motion, Knapp seeks leave to amend his answer to add a sixth affirmative defense claiming an easement by prescription.
"[T]he rule on a motion for leave to amend a pleading is that the movant need not establish the merits of the proposed amendment and, ‘[i]n the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ " ( NYAHSA Servs., Inc., Self-Ins. Trust v. People Care Inc. , 156 AD3d 99, 102 [2017], quoting Lucido v. Mancuso , 49 AD3d 220, 222 [2008] ; see Kimso Apts., LLC v. Gandhi , 24 NY3d 403, 411 [2014] ; LaLima v. Consolidated Edison Co. of NY, Inc. , 151 AD3d 832, 834 [2017] ; Cruz v. Brown , 129 AD3d 455, 456 [2015] ).
"To establish the existence of a prescriptive easement, [it must be] ‘show[n], by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years’ " ( Rensselaer Polytechnic Inst. v. Schubert , 170 AD3d 1307, 1310 [2019], quoting Gulati v. O'Leary , 125 AD3d 1231, 1233 [2015] ; accord Rosenzweig v. Howlan , 166 AD3d 1146, 1148 [2018] ). Here, Knapp and White state in their respective affidavits that they have been docking their boats on plaintiff's property since purchasing their property over 30 years ago and that they have shared the cost and expense of maintaining the dock. While plaintiff contends — as set forth above — that their use of the dock was permissive, such contention certainly does not render the proposed amendment palpably insufficient or patently devoid of merit. Further, because Knapp has been alleging such use of the dock since the commencement of this action, it cannot be said that the addition of this affirmative defense will result in prejudice to plaintiff.
Based upon the foregoing, that aspect of Knapp's cross motion seeking leave to amend his answer is granted.
Counsel for the remaining parties are hereby directed to appear for a preliminary conference on September 27, 2019 at 10:00 A.M. at the Warren County Courthouse in Lake George, New York. In lieu of an appearance, counsel may also complete a Preliminary Conference Stipulation and Order — which form is available online at http://www.nycourts.gov/courts/4jd/mt-rules/muller-order.pdf — and submit the same to the Court at least forty-eight (48) hours prior to the conference.
Therefore, having considered the Affidavit of Richard J. Herrmann, Esq. with exhibits attached thereto, sworn to October 29, 2018, submitted in support of plaintiff's motion; Memorandum of Law of Richard J. Herrmann, Jr., Esq., dated October 29, 2018, submitted in support of plaintiff' motion; Affidavit of Mark E. Cerasano, Esq. with exhibits attached thereto, submitted in opposition to plaintiff's motion and in support of North Tract and Casa Rocce's cross motion; Affidavit of Thomas W. Peterson, Esq. with exhibits attached thereto, submitted in opposition to plaintiff's motion and in support of Edie's cross motion; Affidavit of Linda S. Leary, Esq. with exhibits attached thereto, sworn to December 31, 2018, submitted in opposition to plaintiff's motion and in support of Knapp's cross motion; Affidavit of James M. White with exhibits attached thereto, sworn to November 26, 2018, submitted in opposition to plaintiff's motion and in support of Knapp's cross motion; Affidavit of George S. Knapp with exhibits attached thereto, sworn to November 26, 2018, submitted in opposition to plaintiff's motion and in support of Knapp's cross motion; Memorandum of Law of Linda S. Leary, Esq., dated December 31, 2018, submitted in opposition to plaintiff's motion and in support of Knapp's cross motion; Reply Affidavit of Richard J. Herrmann, Jr., Esq., sworn to January 30, 2019, submitted in further support of plaintiff's motion and in opposition to the cross motions; and Memorandum of Law of Richard J. Herrmann, Jr., Esq., dated January 31, 2019, submitted in further support of plaintiff's motion and in opposition to the cross motions, and oral argument having been held on August 16, 2019 with Richard J. Herrmann, Esq. appearing on behalf of plaintiff, Thomas W. Peterson, Esq. appearing on behalf of defendant Gary J. Edie and Mark E. Cerasano, Esq. appearing on behalf of defendants North Tract Properties, LLC and Casa Rocce, LLC, it is hereby
Counsel for defendant George S. Knapp failed to appear at oral argument.
ORDERED that the first aspect of plaintiff's motion seeking bifurcation of the damages portion of the trial is granted and the second aspect of the motion seeking summary judgment is denied; and it is further
ORDERED that North Tract and Casa Rocce's cross motion for summary judgment is denied; and it is further
ORDERED that Edie's cross motion is granted and he is entitled to summary judgment dismissing the complaint as against him and awarding the relief requested in his first counterclaim and cross claim; and it is further
ORDERED that the easement rights contained within Edie's deed and discussed hereinabove are hereby declared valid and enforceable; and it is further
ORDERED that the first aspect of Knapp's cross motion seeking summary judgment is denied and the second aspect of the cross motion seeking leave to amend his answer is granted, with Knapp hereby directed to file and serve his amended answer within thirty (30) days of the date of this Decision and Order; and it is further
ORDERED that counsel for the remaining parties shall appear for a preliminary conference on September 27, 2019 at 10:00 A.M. at the Warren County Courthouse in Lake George, New York or, in lieu of an appearance, may submit a completed Preliminary Conference Stipulation and Order to the Court at least forty-eight (48) hours prior to the conference; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated October 29, 2018, Notice of Cross Motion dated January 17, 2019, Notice of Cross Motion dated January 17, 2019, Notice of Cross Motion dated January 18, 2019 and the submissions enumerated above. Counsel for defendant Gary J. Edie is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all other parties in accordance with CPLR 5513.