Opinion
# 2015-044-520 Claim No. 121043 Motion No. M-86248
07-01-2015
ANDREW C. WOEHREL v. THE STATE OF NEW YORK
THE LAW OFFICE OF ALFRED PANICCIA, JR., ESQ. BY: Alfred Paniccia, Jr., Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General
Synopsis
Court denies defendant's motion for partial summary judgment on the sole issue of whether claimant had legal access to his real property at the time it was appropriated; questions of fact exist regarding whether claimant had legal access pursuant to a prescriptive easement.
Case information
| UID: | 2015-044-520 |
| Claimant(s): | ANDREW C. WOEHREL |
| Claimant short name: | WOEHREL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121043 |
| Motion number(s): | M-86248 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | THE LAW OFFICE OF ALFRED PANICCIA, JR., ESQ. BY: Alfred Paniccia, Jr., Esq., of counsel |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 1, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim to recover damages from the appropriation of certain parcels of real property located in the Town of Ashland, Chemung County. In accordance with the Uniform Rules for the Court of Claims (22 NYCRR) § 206.21 (a), the allegations of the claim are deemed denied without the necessity of an answer. Defendant now moves for partial summary judgment solely on the issue of whether claimant had legal access to his real property at the time it was appropriated by Elmira-Lowman, SH 5207, PIN 6066.58, Map No. 158, Parcel Nos. 195 and 196, and Map No. 162, Parcel Nos. 204 and 205, and Map No. 165, Parcels 281 and 282 (the 2009 Appropriations). Claimant opposes the motion. Defendant replies. With the Court's permission, claimant has submitted an affidavit in further opposition.
Defendant argues that appropriations undertaken in 1999 left claimant's property without access to Chenango County Route 60 (Route 60). Defendant further contends that claimant's use of a roadway (the Roadway) which is located along a utility easement owned by New York State Electric & Gas (the NYSEG Easement) and which runs through an adjoining parcel of property owned by Coldiron Fuel Center, Ltd. (Coldiron) was not authorized by Coldiron. Defendant asserts that claimant's property did not have legal access and should be valued accordingly.
Conversely, claimant contends that at the time of the 2009 Appropriations, he had an express easement to use the Roadway located not only on his property, but on Coldiron's property as well.
Claimant's alternative arguments that he had an easement by estoppel and/or an easement by prescription are discussed infra.
Defendant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The Court's function "is to view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and determine whether there is any triable issue of fact outstanding" (Boyce v Vazquez, 249 AD2d 724, 726 [3d Dept 1998]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
In support of this motion, defendant has submitted an affidavit of Christopher Kramer, Senior Land Surveyor for the Department of Transportation (DOT), Region 6. Kramer states that he has worked for DOT for 26 years, and has been a Professional Land Surveyor since 2000. Kramer indicates that he has reviewed Acquisition Map No. 158, Parcel Nos. 195 and 196, Acquisition Map No. 162, Parcel Nos. 204 and 205, Acquisition Map No. 165, Parcel Nos. 281 and 282, 2008 Right of Way Plans for project PIN 6066.58, 1999 Right of Way Plans for project Contract No. D258266, 1999 Right of Way Plans (combined), a letter dated March 29, 2011 from NYSEG to claimant (the NYSEG Letter), and this claim.
The Court notes that throughout his affidavit, Kramer erroneously refers to the project PIN as 6086.58.201 rather than 6066.58 as indicated on the Acquisition Map.
Kramer states that on August 12, 1999, the road bed of Route 60 was appropriated by the filing of Map No. 124, Parcel 151. With the filing of Map No. 105, Parcel No. 132 (on August 12, 1999), and Map No. 106, Parcel No. 133 (on September 13, 1999), the State appropriated that portion of claimant's property which had access to Route 60. The State filed Map No. 107, Parcel No. 134 (on September 9, 1999) which appropriated a portion of Coldiron's property which also had access to Route 60. Coldiron's property is adjacent to claimant's property on the easterly side. Kramer notes that pursuant to the 1999 Appropriations (which were part of contract D258266), Route 60 was terminated further east along Coldiron's property.
At that time, the property appropriated by Map No. 106, Parcel No. 133 was owned by Eleanor E. Nissen and Betty Ann Brakefield (see infra). They conveyed the remaining portion of their property (the Nissen Property) to claimant in 2000.
These appropriations shall be referred to collectively as the 1999 Appropriations throughout the remainder of this Decision and Order.
Kramer has attached, as Exhibit 4 to his affidavit, a copy of the 2008 Right of Way Plans with the 1999 Appropriations which left claimant's property and Coldiron's property without access to Route 60 outlined in yellow, the various property lines outlined in pink, and the NYSEG Easement outlined in blue. The NYSEG Easement runs in a westerly direction through Coldiron's property and then claimant's property, essentially parallel to Route 60 and State Route 17 (Route 17). The NYSEG Easement then ran along the east boundary of Coldiron's property in a southerly direction to Route 60. Kramer notes that the NYSEG Letter purports to give claimant permission to use the NYSEG Easement for ingress to and egress from his property. However, DOT does not recognize the NYSEG Letter as providing claimant with legal access because NYSEG did not own the real property burdened by the NYSEG Easement, and had no authority to issue an easement over the property. Based upon a review of the relevant documentation, Kramer opines that claimant had access to his property only by traversing the Roadway on Coldiron's property without permission. Accordingly, Kramer concludes that claimant did not have legal access to his property after the 1999 Appropriations.
At various times, both parties refer to a loss of access to Route 17. However, based upon a review of Kramer's affidavit and Exhibits 4 and 5 attached thereto, it appears that the relevant portion of the roadway adjacent to claimant's and Coldiron's properties was Route 60 (also known as Old Lowman Road).
David Coldiron, President of Coldiron, has also provided an affidavit in support of defendant's motion. He states that Coldiron owned the parcel of real property adjacent to claimant's property since July 1980, and indicates that there is a NYSEG power line which runs through Coldiron's property in an easterly to westerly direction. He also states that the Roadway is underneath the power line and runs in the same direction through Coldiron's property and claimant's property. David Coldiron notes that Coldiron has not given claimant any permission, right, use, or easement to enter upon and/or remain upon Coldiron's property in order for him to access his property, whether by virtue of the NYSEG Easement or the Roadway.
There does not appear to be any dispute that the 1999 Appropriations, which took a portion of claimant's land, extinguished his direct access to his property from Route 60. However, it is claimant's contention that he retained legal access to his property by an easement granted to him pursuant to the NYSEG Letter. The NYSEG Letter dated March 29, 2001 and issued by Edward P. Dickinson, Energy Delivery Manager, states in relevant part:
Pursuant to your request . . . for permission in writing from NYSEG for the Chemung County Emergency personnel, as well as yourself and your visitors going and coming from your property to cross [the NYSEG Easement] off County Route 60 and NYS Route 17 . . . for parcels 121.000.0001.004, 121.000.0001.005 and 121.000.0001.001.033.
Permission is hereby granted for the ingress and egress of NYSEG's right of way with the following conditions and understanding . . .
This agreement is for ingress and egress. No other uses of our easement and right of way will be permitted without written consent by NYSEG.
Affidavit of Christopher B. Kramer, Sworn to Dec. 19, 2014 (Defendant's Motion for Summary Judgment, Exhibit B), Exhibit 7.
Affidavit of Christopher B. Kramer, Sworn to Dec. 19, 2014 (Defendant's Motion for Summary Judgment, Exhibit B), Exhibit 7.
Defendant has also submitted an affidavit of Cynthia K. Mathewson, a Real Estate Manager for NYSEG. Mathewson indicates that she is personally familiar with the form and content of the easements which NYSEG procures for designing, constructing, operating, and accessing overhead transmission and distribution lines. Mathewson confirms that NYSEG has an easement over property previously owned by Stanley E. Roberts, i.e. the NYSEG Easement. In the NYSEG Easement, Roberts granted:
Although neither party has presented evidence concerning this issue, there does not appear to be any dispute that Roberts' property which was burdened by the NYSEG Easement included the real property owned by Coldiron and by claimant.
[NYSEG], its successors and assigns, its or their lessees or licensees, the right, privilege, and authority to construct, reconstruct, extend, operate, inspect, maintain, and at its pleasure remove, a pole line with the necessary wires, cross arms, guy wires, braces and other fixtures and appurtenances used or adopted for the transmission and/or distribution of electric current and/or for telephone or telegraph communication for public or private use, upon and over said land and property and/or the highways abutting or running through said land.
Affidavit of Cynthia K. Mathewson, sworn to Jan. 7, 2015 (Defendant's Motion for Summary Judgment, Exhibit C), Exhibit 1 at 2.
Affidavit of Cynthia K. Mathewson, sworn to Jan. 7, 2015 (Defendant's Motion for Summary Judgment, Exhibit C), Exhibit 1 at 2.
Mathewson also notes the NYSEG Letter was issued on March 29, 2001 in response to a request from claimant for permission to cross portions of the land burdened by the NYSEG Easement. She indicates that the purpose of the NYSEG Letter was to confirm that claimant and his visitors could use the NYSEG Easement for the purpose of access to claimant's land. She states that NYSEG did not intend to convey an interest in any property burdened by the NYSEG Easement, including the property owned by Coldiron.
As an initial matter, it should be noted that the NYSEG Easement is not an easement appurtenant because it does not burden one parcel of real property (the servient estate) for the benefit of another parcel of real property (the dominant estate) (see Webster v Ragona, 7 AD3d 850, 853-854 [3d Dept 2004]; Niceforo v Haeussler, 276 AD2d 949, 950 [3d Dept 2000]). Instead, the NYSEG Easement is an easement in gross which burdens both Coldiron's property and claimant's property (the servient estates) without simultaneously conferring a benefit on any other parcel of real property (see Hoffman v Capitol Cablevision Sys., 52 AD2d 313, 315 [3d Dept 1976], lv denied 40 NY2d 806 [1976]). As a general rule, easements in gross are personal to the grantee and are neither assignable nor inheritable (Banach v Home Gas Co., 23 Misc 2d 556, 557-559 [Sup Ct, Schuyler County 1960], affd 12 AD2d 373 [3d Dept 1961], lv denied 10 NY2d 707 [1961]). However, easements in gross which are of a commercial character - such as the NYSEG Easement - are alienable and may be either assigned in total or apportioned (Hoffman, 52 AD2d at 315-317; Banach, 23 Misc 2d at 558-559). Nevertheless, it is axiomatic that a grantor cannot convey a greater estate than it has in the property (see Real Property Law § 245; Goldstein v Jones, 32 AD3d 577, 581-582 [3d Dept 2006], lv dismissed 8 NY3d 939 [2007]).
An easement appurtenant is inseparable from the dominant estate and is included in a conveyance of that estate, whether or not it is expressly set forth in the deed (Webster, 7 AD3d at 854; Niceforo, 276 AD2d at 950).
"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" (Hopper v Friery, 260 AD2d 964, 966 [3d Dept 1999]; Raven Indus., Inc. v Irvine, 40 AD3d 1241, 1242 [3d Dept 2007]). In determining the extent of an easement, the Court must consider "any reasonable use to which it may be devoted, provided the use is lawful and is one contemplated by the grant" (Phillips v Jacobsen, 117 AD2d 785, 786 [2d Dept 1986]; see Albrechta v Broome County Indus. Dev. Agency, 274 AD2d 651, 652 [3d Dept 2000]; see also, Town of Elmira v Hutchison, 53 AD3d 939 [3d Dept 2008]).
In the NYSEG Easement, Stanley Roberts granted NYSEG and its assigns or licensees the right, "to construct . . . operate . . . maintain, and . . . remove, a pole line with the necessary . . . appurtenances used or adopted for the transmission and/or distribution of electric current and/or for telephone or telegraph communication . . . upon and over said land . . . and/or the highways abutting or running through said land." The NYSEG Easement clearly authorizes NYSEG to enter upon the land burdened by it to access the pole line for the stated purposes. However, given the purpose of the NYSEG Easement, it is not reasonable to infer that either Roberts or NYSEG (the parties to the easement in gross) intended that the NYSEG Easement would be used for any purpose other than those associated with the use of the pole line. It certainly is not reasonable to infer that NYSEG would have the right to use the NYSEG Easement to access the real property adjacent to this easement. Moreover, it is completely unreasonable to infer that either party could have intended to allow individuals who are not even incidentally associated with the transmission or distribution of electricity or telegraph/telephone services the right to use the NYSEG Easement to access adjoining real property. Although NYSEG could certainly assign a portion or the entirety of the NYSEG Easement to claimant, NYSEG could not convey to him any greater rights than it had in the NYSEG Easement. The Court finds that the NYSEG Letter did not authorize claimant, his visitors, or anyone else to use the NYSEG Easement for ingress and egress to claimant's property. Further, there is no dispute that claimant did not have an express easement appurtenant from Coldiron to cross its property. Accordingly, defendant has met its initial burden of establishing that claimant did not have legal access to his property.
Affidavit of Cynthia K. Mathewson, sworn to Jan. 7, 2015 (Defendant's Motion for Summary Judgment, Exhibit C), Exhibit 1 at 2.
See Hoffman (52 AD2d at 315-317), where the Court allowed and expanded the use of an easement in gross for the installation and operation of a power and telephone pole line, holding that the easement could be apportioned to a cable provider for installation of cable equipment on the existing poles because this use would not create any additional burden on the servient estates.
The burden now shifts to claimant to submit admissible evidence which creates a question of fact concerning the issue of legal access to his property. Claimant states in his affidavit in opposition that he owned three parcels of real property before the 2009 Appropriations. One parcel (1.5 acres) was purchased in 1989 and was improved with a 12-room motel and campground (the Motel Property). In 1997, claimant purchased a second parcel (2.0 acres) which was improved with a single family house (the Log Home Property) and was located behind the Motel Property. The third parcel (2.0 acres) (the Nissen Property) was purchased in 2000 and was located east of and adjacent to the Motel Property. Claimant notes that prior to the 1999 Appropriations, he had access to the Motel Property and the Log Home Property from Route 60 via a driveway. According to claimant, defendant appropriated a long narrow strip of land between Route 60 and the Motel Property as part of the 1999 Appropriations. As a result, he could no longer access the Motel Property (or the Log Home Property behind it) directly from Route 60. In the 1999 Appropriations, defendant also appropriated land from both the Nissen Property and Coldiron's property, eliminating their access to Route 60.
Claimant indicates that after the 1999 Appropriations, he continued to own and operate the motel and campground, and he completed construction of the single family house on the Log Home Property. Claimant states that he continued to have access to his property solely by using the Roadway. Claimant notes that after the 1999 Appropriations, Nissen and Brakefield also used the Roadway to access their house on the Nissen Property before they sold it to him.
Claimant states that shortly after the 1999 Appropriations eliminated his direct access to Route 60, the Town of Ashford charged him with operating the motel and campground without approved emergency vehicle access. The Chemung County Health Department advised him that if the Town of Ashford revoked his certificate of occupancy for the motel and campground, the Health Department would terminate his operating permits for those facilities. Claimant states that he asked Steve Coldiron to give him a written right of way to use the Roadway. According to claimant, Steve Coldiron indicated that his attorney advised against granting any easement because the family was in litigation with the State concerning the appropriation of Coldiron's property. However, claimant states that Steve Coldiron suggested that he contact NYSEG about obtaining a right of way from it. Claimant indicates that NYSEG provided him with a right of way along the pole line as evinced in the NYSEG Letter. Claimant recorded the NYSEG Letter in the Chemung County Clerk's Office, and also sent a copy to both the Town of Ashland (which dropped the charges against him) and the Chemung County Health Department (which continued to issue operating permits through 2008).
Claimant's contention that he has an express easement pursuant to the NYSEG Letter is not viable. As an initial matter, claimant has admitted that Coldiron did not give him either an express easement or any other permission to cross Coldiron's property for the purpose of reaching his property. Moreover and as set forth previously herein, NYSEG could not grant claimant any further right to use the NYSEG Easement than it had, and thus could not authorize claimant to use the Roadway for the purpose of ingress to and egress from his property. Accordingly, the Court finds that claimant has failed to create a question of fact concerning legal access to his property pursuant to an express easement.
However, claimant argues in the alternative that he had access to his property by means of an easement by estoppel and/or an easement by prescription. Claimant notes that there is a NYSEG electric pole line which intersects with Route 60 at the eastern end of Coldiron's property. This pole line travels westerly across Coldiron's property, the Nissen Property (behind the structures) and the Motel Property (behind the motel and through the campsites). Claimant indicates that the pole line is roughly parallel with Route 60 and Route 17 and he acknowledges that it is depicted in blue on Exhibit 4 to Kramer's affidavit. Claimant states that the Roadway has existed underneath the pole line since1989 at the latest, when he purchased the Motel Property. He notes that even before the 1999 Appropriations, he and his customers used the Roadway to travel between the motel/campsites and Route 60 as well as to go to Coldiron's restaurant and gas station. Claimant indicates that truck drivers who used Coldiron's truck stop also used the Roadway to rent motel rooms, to use the motel's fax machine, or to use the shower facilities at the campground. Claimant notes that after the 1999 Appropriations, the State replaced most of the pavement/parking lot on Coldiron's property with topsoil and seed, but left a portion of pavement along the NYSEG easement at claimant's request. Claimant states that he continued to use the Roadway, including this section of pavement, in order to access his properties. Claimant states that in reliance on both the NYSEG Letter and his use of the Roadway for approximately 20 years, he made substantial improvements to his properties as well as the Roadway itself.
In his supplemental affidavit, claimant acknowledges that Coldiron never gave him permission to come onto its property and reiterates that he, his customers, and others going to the motel and campsites traveled over the Roadway for many years prior to the 1999 Appropriations. He also indicates that he placed painted concrete curbing and traffic cones, and erected "no exit" and "motel" signs along the side of the Roadway. He further notes that he strung a "motel" banner across the Roadway near the boundary line between his property and Coldiron's property. Claimant has submitted several photographs of the Roadway depicting these items. Claimant also notes that aerial photographs submitted by defendant show that the Roadway is readily apparent, or obvious. Claimant states that Coldiron previously used the Roadway to deliver fuel oil to claimant's properties, intimating that Coldiron was clearly aware of the Roadway. Claimant reiterates that he discussed an express easement with Steve Coldiron who suggested that claimant contact NYSEG. Claimant states that without this discussion he never would have approached NYSEG for an easement.
Defendant has submitted a supplemental affidavit of David Coldiron in which he denies any prior knowledge of the "easement" purportedly granted to claimant in the NYSEG Letter or that claimant used the NYSEG Easement and/or the Roadway to access his (claimant's) property. He reiterates that Coldiron never granted anyone permission or authority to cross its land to access claimant's property. Stephen Coldiron has submitted an affidavit denying that claimant contacted him or that he recommended that claimant contact NYSEG for an easement. He further denies ever giving claimant permission to cross Coldiron's property, whether by using the NYSEG Easement or otherwise. Stephen Coldiron states that he was not aware that claimant or any of his customers used the Roadway at any time and opines that claimant's use was not open and obvious.
Christopher Kramer also submits a supplemental affidavit in which he states that there is no record of any Court determination of an easement by prescription over Coldiron's property. Kramer indicates that the construction contract pertaining to the 1999 Appropriations was awarded on November 24, 1999 which was the earliest date that construction could have begun. Because title to claimant's property pursuant to the 2009 Appropriations vested in the State on March 17, 2009, Kramer opines that claimant has not used the Roadway for the requisite 10-year prescriptive period.
In order to establish an easement by estoppel, a claimant must set forth evidence that the purported servient estate owner made representations by words or actions that the claimant could have use of the land or would be given an easement, and that the claimant - reasonably believing that he or she had such an easement - detrimentally changed his or her possession in reliance thereon (U.S. Cablevision Corp. v Theodoreu, 192 AD2d 835, 839 [3d Dept 1993]; Van Schaack v Torsoe, 161 AD2d 701, 703 [2d Dept 1990]).
Claimant's contention that he has an easement by estoppel is without merit. Claimant admits that Steve Coldiron did not give him an express easement over Coldiron's property based upon legal advice from his attorney. Regardless of whether Steve Coldiron referred claimant to NYSEG, there is no contention that he made any affirmative representations that claimant would have a right or permission to cross Coldiron's property. Claimant's reliance upon the mere referral as a representation that claimant could use Coldiron property is not reasonable. Even if NYSEG's conduct in issuing the NYSEG Letter purporting to give claimant access to the NYSEG Easement and/or the Roadway may have constituted a representation that claimant had an easement for ingress and egress to his properties, NYSEG was not the servient estate owner. Consequently, NYSEG's representation and claimant's reliance thereon cannot create an easement by estoppel on the servient estate belonging to Coldiron. The Court finds as a matter of law that claimant has not provided sufficient evidence to create a question of fact as to whether he had an easement by estoppel.
Claimant also contends that he continuously used the Roadway across Coldiron's property to access his property for approximately 20 years prior to the 2009 Appropriations and accordingly has acquired an easement by prescription. Conversely, defendant argues that because Coldiron was not aware of claimant's use of the NYSEG Easement and/or the Roadway, it was not open and notorious. Defendant further asserts that claimant's use of the Roadway from the time of the 1999 Appropriations did not satisfy the statutory 10-year period.
Defendant also contends that because NYSEG had an easement to tend to its power lines, claimant's use of the Roadway was not exclusive. However, it is not necessary for a claimant to establish the element of exclusive use when seeking a prescriptive easement as opposed to seeking title to real property by adverse possession (McLean v Ryan, 157 AD2d 928, 930 [3d Dept 1990]); see also Levy v Morgan, 31 AD3d 857, 858-859 [3d Dept 2006]).
In order to set forth a cause of action for an easement by prescription, a claimant must show that the use of the servient property was open and notorious, continuous and hostile for the prescriptive period of 10 years (Estate of Becker v Murtagh, 19 NY3d 75, 81 [2012]; Barra v Norfolk S. Ry. Co., 75 AD3d 821, 823 [3d Dept 2010]). "[O]nce the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive" (Barra, 75 AD3d at 823). "Where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right" (Susquehanna Realty Corp. v Barth, 108 AD2d 909, 910 [2d Dept 1985]).
Claimant acknowledges that prior to the 1999 Appropriations he used a driveway for access between his property and Route 60. However, claimant states that since he bought the Motel Parcel in 1989, he has also repeatedly traveled the Roadway from the Motel Property, through the Nissen Property, to and through the truck stop parking lot on Coldiron's property, and then ultimately onto Route 60. He further notes that his customers at the motel and campground as well as Nissen and Brakefield (his predecessors in interest to the Nissen Property) also often used the Roadway to access Route 60. He specifically notes that after the 1999 Appropriations, the State left a portion of pavement between the Coldiron parking lot and the Roadway, which claimant continued to use to access Route 60 until the 2009 Appropriations. Claimant also openly placed signs and banners on the Roadway as if it was his own, indicating that it was available for access to his motel and campground. The photographs both in support of and in opposition to this motion establish that the Roadway was clearly visible on Coldiron's property. Notwithstanding David Coldiron's and Steven Coldiron's statements that they were not aware that claimant was using the Roadway, an inference may be drawn that any use of the Roadway on Coldiron's property would have been open and obvious. Moreover, Coldiron has made it clear that claimant did not have permission to use that portion of the Roadway located on Coldiron's property.
Claimant has set forth sufficient evidence from which the Court may infer that he openly, notoriously, and continuously used the Roadway across Coldiron's property beginning as early as 1989 when he bought the Motel Property and continuing through the 2009 Appropriations, well over the prescriptive period of 10 years. Having provided proof of these elements, there is a presumption that claimant's use was hostile to Coldiron's interests. Although claimant will bear the burden at trial of proving by clear and convincing evidence that his conduct was sufficient to establish entitlement to a prescriptive easement (Wechsler v People, 13 AD3d 941, 944 [3d Dept 2004]; Allen v Mastrianni, 2 AD3d 1023, 1024 [3d Dept 2003]), he has produced sufficient evidence at this point to meet his burden of creating a question of fact as to whether he had a prescriptive easement to access his property at the time of the 2009 Appropriations.
The Court notes that RPAPL Article 5 was amended effective to claims filed on or after July 7, 2008 (L 2008, ch 269) "to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights" (Becker, 19 NY3d at 81, n 4). Although "statutory changes affecting the law of adverse possession [also] alter the common law doctrine of prescriptive easement" (Barra, 75 AD3d at 826, n 5), if claimant is successful in establishing the required elements, title to the prescriptive easement would have vested prior to the effective date of the legislation. Accordingly, the Court will determine this matter pursuant to the law as it existed prior to the 2008 amendments to RPAPL Article 5 (id.; see also Quinlan v Doe, 107 AD3d 1373, 1376, n 1 [3d Dept 2013], lv denied 22 NY3d 854 [2013]; Wilcox v McLean, 90 AD3d 1363, 1367, n 3 [3d Dept 2011] ; but see Ziegler v Serrano, 74 AD3d 1610 [3d Dept 2010], lv denied 15 NY3d 714 [2010] [where the Court applied the 2008 amendments to a claim filed in September 2008 to quiet title which allegedly vested in 1995, noting that the parties had not raised the issue and the determination under the prior law would have been the same; Sawyer v Prusky, 71 AD3d 1325 [3d Dept 2010] [where the 2008 amendments were applied to an action commenced in September 2008 even though title would have vested in 2007]).
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In conclusion, claimant had neither an express easement nor an easement by estoppel to use the Roadway adjacent to the NYSEG Easement as a matter of law. However, claimant has presented sufficient evidence to create a question of fact as to whether he may have had legal access to his property pursuant to a prescriptive easement. Accordingly, defendant's motion for partial summary judgment solely on the issue of legal access is denied.
July 1, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on defendant's motion: 1) Notice of Motion filed on January 28, 2015; Affirmation of Joseph F. Romani, Assistant Attorney General, dated January 26, 2015, and attached exhibits; Memorandum of Law dated January 26, 2015. 2) Affirmation in Opposition of Alfred Paniccia, Jr., Esq., dated March 18, 2015, and attached exhibits; Memorandum of Law dated March 18, 2015. 3) Affirmation of Joseph F. Romani, Assistant Attorney General, in further support dated April 6, 2015, and attached exhibits; Supplemental Memorandum of Law dated April 6, 2015. 4) Affirmation of Alfred Paniccia, Jr., Esq., in further opposition dated April 14, 2015; Affidavit of Andrew C. Woehrel sworn to on April 14, 2015, and attached exhibits; Supplemental Memorandum of Law dated April 14, 2015. Filed papers: Claim filed on March 15, 2012.