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Dinaburg v Denihan 2013 NY Slip Op 30685(U) April 1, 2013 Sup Ct, Suffolk County Docket Number: 12-22839 Judge: Hector D. LaSalle Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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INDEX NO. 12-22839

SUPREME COURT - STATE OF NEW YORK T.A.S. PART 48 - SUFFOLK COUNTY

PRESENT:
1 Ion.

HECTOR D. LaSALLE Justice of the Supreme Court

MOTION DATE 10-24- 12 (#OO 1) MOTION DATE 11-20-12 (#002) ADJ. DATE 12-20- 12 Mot. Seq. # 001 - MotD # 002 - MotD

X
DIAIIRY A. DTNABURG. and SHARI B. TIINARU RG,
HARRAS BLOOM & ARCHER, LLP Attorney for Plaintiffs 445 Broad Hollow Road, Suite 127 Melville, New York I 1747 LAMB & BARNOSKY, LLP Attorney for Defendants 534 Broadhollow Road, P.O. Box 9034 Melville, New York 1 1747

P 1ainti ffz;,
- against -

LALIIUINCE DENIIIAN, ANN DENIHAN, and D U N E ROAD HOLDINGS, INC.,
Defendants.

Upon thc following papers numbered 1 to 1 19 read on these motions for partial summary judgment ;Notice o f Motion/ Order to Show Cause and supporting papers 1 - 23, 76 - 90 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 26 - 5 1 , 91 - 119 ; Replying Affidavits and supporting papers 53 - 73 ; Other memoranda of law - 25,52,74 - 7s : ( 2-1 c ' x ' ) it is,

ORDERED that these motions are hereby consolidated for purposes of this determination; and it is
lilrlllcs

ORDERED that the motion by the plaintiffs for an order pursuant to CPLR 32 12 granting them partial summary judgment on the first through fifth claims set forth in their complaint and partial summary judgment in their favor on the counterclaim set forth in the ,answer of the defendants Laurence Denihan and Ann Denihan is granted to the extent that the plaintiffs are entitled to a judgment declaring that they are the holders of a ceitain easement as alleged in their first claim, and to partial summary judgment regarding that portion of the afclresaid counterclaim which asserts the right to relocate the subject easement, and is otherwise denied; and it is liirther ORDERED that the motioii (incorrectly designated as a cross motion) by the defendant Dune Road Holdings. Inc. for an order pursuant to CPLR 321 2 granting them partial summaryjudgment on the first through

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Dinaburg v Denihan Index No. 12-22839 Page No. 2

fourth crossclaims against the defendants Laurence Denihan and Ann Denihaii as set forth in their answer to the complaint is granted to the extent that the defendant Dune Road Holdings, Inc. is entitled to ajudgment declaring that it is tlic holder o f a certain easement as alleged in their first crossclaim, and that its codefendants may not unilatcrally relocate said easement, and is otherwise denied; and it is further

ORDERED that upon a search of the record pursuant to CPLR 3212 (b), partial summary judgment is granted in favor of the defendants Laurence Denihan and Ann Denihan on that portion of their counterclaim and crossclaim which seeks a declaration that the plaintiffs and the defendant Dune Road Holdings, Inc. are not entitled to construct a walkway upon the subject easement unless required by law.
I'he plaintiffs comnienced this action pursuant to Real Property Actions and Proceedings Law Article 1 5 seeking, among other things, Zljudgment declaring their rights with respect to a non-exclusive easement for pedestrian ingress and egress to Ivloriches Bay over property owned by the defendants Laurence Denihan and Ann Denihan (the defendants). `The defendant Dune Road Holdings, Inc. (Holdings) owns property adjacent to that owncd by the plaintiffs, which enjoys the same right of ingress and egress over the defendants' property. The plaintiffs` complaint consists of six separate claims against the defendants. The claims can be summarized as foilnus: the first claim seeks a judicial declaration that their property is benefitted by the subject easement; the second claim secks a declaration that the plaintiffs may demarcate the boundaries of said easement; the third claim sceks a declaration that the plaintiffs may iinprove the easement and install a walkway thereon; the fourth claim seeks a permanent injunction enjoining the defendants from interfering with the plaintiffs' right of passage over tlie easement; the fifth claim seeks a mandatory injunction directing the defendants to remove certain obstructions allegedly lying within the boundaries of the easement; and the sixth claim seeks damages for the defendants' alleged interfkrence with the plaintiffs' use of the easement in the summer of 20 1 1 and the SL1nlmcr of 20 12.

The plaintilfs are owners of a residential home located at 525 Dune Road, Westhampton Beach, New York (plaintiffs' property or 525 Dune) . Holdings is the owner of the house to the west of the plaintiffs' property, located at 527 Dune R o d , Westhampton, New York. Both properties lie south of Dune Road, across from the property owned by the defendants located at 524 Dune Road, Westhampton Beach, New York (dci'endants' property or 524 Dune). The Atlantic Ocean abuts tlie southerly boundary of the plaintiffs property. and Moriches Bay abut:; the northerly boundary of the defendants' property. It is undisputed that the thrcc lols, along with a fourth lot located at 526 Dune Road, Westhampton Beach, New York, lie within chains of title from a coninion grantor. It is also undisputed that the plaintiffs' property is benefitted by a three-foot u idc cascment described as follows: "[A] non-exclusive easement for pedestrian ingress and egress only to Moriclies Bay three feet in width along the westerly boundary of the premises at 524 Dune Road" (the eascmct i t ).
The plaintiffs now move for summary judgment in their favor granting them the rcliefrcquested i n their
cniiipluint. In support of the motion, the plaintiffs submit, among other things, their affidavits. copies of the

plcadings, deeds, land surveys, and an expert affidavit by a licensed land surveyor. In his affidavit, the plaintiff Barr) A . Dinalxtrg (Ilinaburg) swears that he and his wife acquired 525 Dune by a certain deed dated May 11, 20 I 1. d u l j recorded on May 24. 201 1, which included the above-referenced easement. He states that tlie dcfi-ndants ncquircd 524 Dune by a deed dated March 4, 2002, duly recorded on April 5 , 2002, which states: "Subject to covenants, restrictions and conditions (if any) and easements (if any) of record affecting such premises. Sub.ject also to any existing rights of way, or easements, lo pass or repass over said premises or any

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Dinaburg 1' Denihan 12-22839 Index NO. I'ngc No. -3
part thercol`(vliether or (sic)record or not of record) of any corporation, person or persons whomsoever." He states that tlie easement benefitting the plaintiffs' property as the dominant estate, and burdening the defendants` property as the servient estate, is contained in three deeds, all duly recorded, issued by the common grantor or his estate (Grantor), and that the location of the easement is defined, as demonstrated in the affidavit of his eypert. He indicates that, at the time he and his wife purchased 525 Dune, the easement was clear all the ?;a) from Dune Road to the edge of Moriches Bay, "where there was just some natural brush," and that from May 1 1.20 1 1 to the first week in July 20 1 1, he and his wife walked along the area of the easement. Dinaburg further swcars that in or about the first week of July 20 1 1, tlie defendants erected fences around the defendants' property and the acljacerit parcel owned by them, located at 526 Dune Road, Westhamptoii Beach, New York (dvfcndants' adjacent property) and west of 524 Dune, and otherwise obstructed tlie plaintiffs' use of the easement. 1 le indicates that lie spoke with the defendant Laurence Denihan (Denilian), who refused to install fence gates permitting the plaintiffs to use the easement. In August 201 1, Denihan informed tlie plaintiffs that the defendants intended to unilaterally relocate the easement to the easterly boundary of the defendants' property. IHe states that, on July 12,2012, he and his wife, as well as two members of a surveying crew, were infornicd hy unidentified persons on the defendants' property that the easement had been relocated, and that they vmild not be permitted to use the easement. Dinaburg further swears that he and his wife did not agree, ontlly or in writing, to the relocation of the easement.'
111his affidavit, Floyd Carrington (Carrington) swears that he is a licensed land surveyor, and apriiicipal in Raynor, Marcks & Carrington Surveying (RMCS). He states that he is familiar with the properties owned

by the plaintiffs and the defendants, and that according to written and recorded deeds in the Office of the Clerk of`Suffolk County, the defendants' property is burdened by a three-foot wide easement benefitting the plaintiffs' property. Specifically, he references three deeds which establish said easement. He indicates that, in or about 12pril20 1 1, he went to Dune Road to observe the conditions on the defendants' property, including the general location ofthe easement. Carrington further swears that, on April 22,201 1, two employees of RMCS surveyed and staked the location of the easement, and that, on July 12, 2012, employees of RMCS re-set survey spikes at the corners of the easement, and located a wire fence and wood gate encroaching upon the easement. I-Ie attaches a copy of a survey to his affidavit, updated on July 12, 2012, which he avows shows the location of the easement.
A review of tlic deeds submitted in support of the plaintiffs' motion reveals that the four properties referenced herein were conveyed by the Grantor or his estate at one time or another.2 In reviewing the three deeds specifically relied upon by the plaintiffs artd their expert, the Court notes the following: in the first deed, dated August 2 I , 1973, recorded at Liber 7473, page 547, Grantor conveyed title to the property now owned by Holdings to a grantec:

`TOGETHER WITH a non-exclusive easement three feet in width along the westerly boundary of premises, now owned by the party of the first part ... for the right of ingress and egress only to Moriches Bay. The
I

rlic affidavit ofthe plaintiff Shari B. Diriaburg contains the same factual allegations as those in

Dinaburg's aftidavit, which do not need to be repeated herein.
'
I

I hat is, the plaintiffs' property, the Holdings property, the defendants' property, and the defendants'
_

a d 1 ace tit property.

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llinaburg v Denihan Index No. 12-22839 Page No. 4 party of the second part is riot granted the right to build an elevated boardwalk or walkway over the easement area unless same is required by law.
I'he second deed out of the Grantor's Estate, dated March 2, 1985, which lies within the defendants' chilin of title for 524 Dune, includes the following provision:

"SUBJECT T O a non-exclusive easement for pedestrian ingress and egress to Moriches Bay three feet in width along the westerly boundary of the premises ... as granted in a certain deed dated August 21, 1973, and recorded in the office of the Suffolk County Clerk in Liber 7473, pages 547 and 548, and for the benefit of the premises at 525 Dune Road to be granted in a deed from grantor conveying same at a later date." `I'he third deed out of the Grantor's Estate, dated July 3 1, 2005, which lies within the plaintiffs' chain of title for 525 Dune, includes the following provision: "`I'OGETHER WITH a non-exclusive easement for pedestrian ingress
and egress only to Moriches Bay three feet in width along the westerly

boundary of the premises at 524 Dune Road."

In opposition to the plaintiffs' motion, the defendants submit, among other things, Denihan's affidavit, copies of deeds. land surveys, and photographs of their property. In his affidavit, Denihan swears that the dcli`endants' property is burdened by the easemlmt which benefits the plaintiffs' property and the Holdings property, and that the easement appears in the deeds from the common grantor of all four lots involved in this action. 1-IC states that 524 Dune and the defendants' adjacent property were initially purchased by "a family coinpany," that said company acquired title to 5 24 Dune by deed dated June 15, 1990, and that said company acquired title to the adjacent property by deed dated March 18, 1998. He declares that both properties were conveyed to him and his wife by deeds dated March 4,2002, that both parcels have been used by his family as a single property since 1998, although they are separate tax lots, and that the easement runs through the middle of the "entire property." Denihan further swears that in approximately August 20 10, construction of a new holm on the acl.jacent property and renovation on the house located at 524 Dune commenced, and that said continued through early July 2012. He states that the easement was not used prior to the subject construction, that it was populated with natural brush, and that the defendants have never planted anything in the area of the easement north of the gate in the wire fence installed by them. He declares that, prior to the p1aintiL`fs'purchase of 525 Dune, he spoke with the plaintiffs and acknowledged that he was aware of the easement for pedestrian ingress and egress to Moriches Bay, that the plaintiffs indicated that they were iinconi I'ortable using the easement running through the middle of the defendants' property, and that the plaintit'f~ssuggested the relocation of the easement. He told the plaintiffs that he would consider moving the easement to the western boundary of the adjacent property, but that he would need the cooperation of Holdings. Denihan further swears that he offered the plaintiffs the use of an existing walkway on the adjacent property, that the plaintiffs accepted the offer, and that he observed them using said walkway on a number of occasions. 1 le states that he decided that there was insufficient room to relocate the easement to the westerly boundary of the ad.iacent property. that he informed Dinaburg that he was making arrangements to relocate the easement to [he easterly boundary of 524 Dune, and that Dinaburg "did not voice any objections," and appeared supportive

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Dinaburg v Denilian lncleu No. 12-22839 Page No. 5 of'lilie idea Denihan declares that construction at the properties was coming to an end in early July 20 1 1, and that fencing was installed "around tlie properties in order to comply with laws and regulations for properties 14 i i l i pools." I le states that he told Dinaburg thai he would "lead the process for relocation," that he contacted professionals to assist him in the relocation process, and that by January 201 2, tlie relocated easement on the easterlj boundary of 524 Dune had been cleared. Denihan denies the allegations that the plaintiffs' use of the easement vas ever obstructed, and he states that the defendants were entitled to relocate the easement because it was not set forth by a metes and bounds description, and that tlie plaintiffs may not expand their rights in the caseiiieiit by installation of a walkway.
It is well settled that express easements are defined by the intent or objective ofthe grantor (see Lewis Young, 92 NY2d 443, 682 NYS2d 657 [ 19981; Estate Ct., LLC vSclznall, 49 AD3d 1076, 856 NYS2d 251 [ ?cl Dept 20081). Where the intention in granting an easement is to afford only a right of ingress and egress, i t is the right ofpassage, and not any right in a physical passageway itself, that is granted to the easement holder (Lewis I' Young, s z q m ) . Therefore, it has been held that a servient landowner may unilaterally relocate or alter an "undetined" right of way (see Lewis v Young, supra; Estate Ct., LLC v Sclinall, ~zipra), long as the so cascnient holder's right of passage is not substantially burdened or impaired (Lewis v Young, 92 NY2d at 449, 682 NYS2d at 660). However, where there is more than a mere general reference to a right of passage, such as \liere an easement is definitively located in the grantor's conveyance, unilateral relocation or alteration by the sen ient landowner is barred as a matter of law (see Mavslz v Hogan, 56 AD3d 1090, 867 NYS2d 786 [3d Ilcpt 20081: Clayton v Whitton, 233 AD2d 828,650 NYS2d 404 [3d Dept 19961; Estate Ct., LLC vSclznal1, s i / p u ; cf. Lewis v Young, supru (indefinite description of the right of way suggests that tlie parties intended to i l l l o  b for relocation; riglit of passage over driveway, wherever located, in general directional sweep of the clistiiig driveway held undefined); Chekijian v,Wans, 34 AD3d 1029, 825 NYS2d 281 [3d Dept 20061 (right o f passage over general direction of driveway held undefined); Green v Blum, 13 AD3d 1037,786 NYS2d 839 I3cl Ilept 20041 (passage cver existing roadway through a lot deemed undefined).
I'

[{ere. the plaintifTs have established their entitlement to summary judgment regarding the first claim in their complaint and their right to a declaration that their property is benefitted by a non-exclusive easement for pedestrian ingress and egress only to Moriches Bay three feet in width along the westerly boundary of the premises at 524 Dune Road. A review of the relevant deeds, as well as the affidavit of the plaintiffs' expert, reveals that the Grantor intended to locate the easement to the westerly boundary ofthe servient parcel, that the casement is detined by the metes and bounds description defining the westerly boundary of said servient parccl, and that the casement is readily located by reference to said metes and bounds description. The defendants Iiave fiiilcd to raise a material issue of fact regarding the Grantor's intent. In addition, they have not established that the location ofihe easement is undefined as a matter of law. Tlie defendants' contention that the change in circumstances hrought about by their purchase of the adjacent lot requires a different result is without merit. Accordingl) the plainti I`fs motion for partial summary judgment on their first claim is granted.

.

I'hc plaintiff's' second claim seeks a declaration that they are entitled to improve the easement by "demarcating" i t s boundaries. The plaintiffs' th [rd claim seeks a declaration that they are entitled to improve the easement by constructing a walkway. As arule, where an easement grants only a right of ingress and egress, it is a right of passage, and not any right in a phyical passageway itself, that is granted to the easement holder (Lcrvis I! Young, sicprn; Goldberg v Zoning Bd, ofAppeals o City o Long Bench, 79 AD3d 874,912 NYS2d f f 668 [2d Dept 20 101). In the absence of an agreement to the contrary, the owner of the dominant estate is rcsponsiblc for maintaining and repairing an easEment (Lopez vAdarns, 69 AD3d 1162. 895 NYS2d 532 [3d

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Diiiaburg v Denihan Indcs No. 12-22839 Page No. 6
I k p t 20101; Penn Hgts. Beach Club, Inc. vMyers, 42 AD3d 602, 839 NYS2d 570 [3d Dept 20071; Cypress Hills Cenietery v City o New York, 35 AD3d 788, 826 NYS2d 736 [2d Dept 20061). That is, the dominant f estate has tlie right to maintain an easement in reasonable condition for its intended use (Ickes v Buist, 68 AD3d 823. 890 NYS2d 641 [2d Dept 20091; Sclzoolfinan v Mannone, 226 AD2d 521, 640 NYS2d 616 [2d Dept 19961). However, the dominant estate may not inflict any unnecessary injury to the premises of the servient o u m r or materially increase the burden on the servient estate (Gates v A T& T Corp., 100 AD3d 12 16, 956 NYS2tl 589 [3d Dept 20121; Have/ v Goldman, 95 AD3d 1174, 945 NYS2d 332 [2d Dept 20121; Lopez v Admw . Y i i pI )~
I Icre, the plaintiffs have failed to establish their entitlement to partial summary judgment on their second and third claims. 'The plaintiffs failed to submit any evidence in their moving papers as to the method o r manner in which they intend to demarcate the boundaries of the easement, or the impact that the demarcation nould have on the defendants' property. In their reply papers, the plaintiffs submit a second affidavit from Carrington indicating that they intend to install survey monuments at the corners of the easement and at points along the east and west boundaries of the easement. However, it is well settled that a movant may not remedy basic deficiencies in its prima facie showing of entitlement to summary judgment by submitting evidence in rcpl? (Brrrrern v MTA Long Islaiid Bus, 52 AD3d 446, 859 NYS2d 483 [2d Dept 20081; Rengijio v City of New I'ork. 7 AD3d 773,776 NYS2d 865 [2d Dept 20041). As such the Court cannot consider such evidence i n dctennining tlie movant's entitlement to summary judgment (Rengifo v City o New York, szp-a; f Constantine v Prerizier Cab C o p , 295 AD2cL 303, 743 NYS2d 516 [2d Dept 20021). In any event, the plnintil'l's' rep13 papers do not establish that the installation of said monuments do not unnecessarily injure or increase the burden on the defendant's property.

Similarly. the plaintiffs failed to establis!h that the installation of a walkway is reasonably necessary to thc. intcndcd usc ofthe easement, and that said installation would not unnecessarily injure or increase the burden on tlie dcfendant's property. This is especially true where it is undisputed that the defendants use 524 Dune and the acl.iacent property as one "entire property." Accordingly, those branches of the plaintiffs` motion which seek partial summary judgment on their second and third claims are denied. The plaintiffs` fourth claim seeks apermanent injunction enjoining the defendants from interfering with thc plaintiffs' right of passage over the easement. A permanent injunction is an extraordinary remedy that will not be granted absent a clear showing by the party seeking such relief that irreparable injury is threatened and that no other adequatc remedy at law exists (see Gaynor v Rockefeller, 15 NY2d 120,256 NYS2d 584 [ 19651; Karie v J.t/trl.s/t, 295 NY 198, 66 NE2d 53 [1946]; Parry vMurpliy, 79 AD3d 713, 913 NYS2d 285 [2d Dept 20 101: McDerriiott v City ofAlbany, 309 AD2d 1004,765 NYS2d 903 [3d Dept 20031, Iv denied 1 NY3d 509, 777 NYS2d 19 [20041: Staver Co. v Skrobiscli, 144 AD2d 449, 533 NYS2d 967 [2d Dept 19881, cppenl di,smisscd 74 NY2d 791, 545 NYS2d 106 [1989 I). Here, the conclusory statement in the plaintiffs' complaint that "Plaintiff3 have no adequate remedy at law" is belied by the allegations and the demand for relief in the plaintiffs' sixth claim which seeks monetary damages for the defendants' alleged interference with the plaintifTs' riglit of passage over the easement in the summer of 201 1 and the summer of2012. In addition, a re,icm of the record reveals that the plaintiffs have not submitted any evidence that they would be irreparably harmed once their riglit to passage over the easement has been established, and that the defendants, despite i ~ n s u c c c s s f ~asscrting their right to relocate the easement, have expressly acknowledged the plaintiffs right ~II~ of ingress and egress over their property.

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Dinaburg v Denihan Index No. 12-22839 Page No. 7
"[A] permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstratcs that it will suffer irreparable harm absent the injunction" (see Merkos L 'Inyonei Clzinuclz, Inc. v Sltarf, 59 AD3d 403, 873 NYS2d 148 [2nd Dept 20091 quoting Icy Splaslz Food & Beverage, Inc. v Heiickd, 14 AD3d 595, 789 NYS2d 505 [2nd Clept 200.51; see also Knne v Walslz, 295 NY 198,66 NE2d 53 [ 10461: Forest Close .4ssn., Inc. v Riclznrds, 4.5 AD3d 527, 845 NYS2d 41 8 [2nd Dept 20071). Injunctive rclicf is "to be invoked only to give protection for the future ... [t]o prevent repeated violations, threatened or probable. of the [plaintiffs'J property rights" (see Merkos L'nyonei Clzinuclz, Inc. v Slzarf, supra, quoting E.-ckange Bakery & Rest. v Rifkin, 245 NY 260, 264-265 [1927]). A permanent injunction constitutes inappropriate and drastic relief under the current circumstances of this action. Accordingly, that branch of the plaintiffs' motion which seeks partial summary judgment on their fourth claim is denied.

The plaintiffs' fifth claim seeks a mandatory injunction directing the defendants to remove all obstructions allegedly lying within the boundaries of the easement including, but not limited to, trees and bushes planted by the defendants, fences, gates, poles, structures, fixtures, motor vehicles, and lacrosse nets. "A mandatory injunction is an extraordinary remedy to which a suitor has no absolute right but which may be granted or withheld by a court of equity in the exercise of its discretion. Even where the facts which would iusti fy the grant of an extraordinary remedy are established, the court still must decide whether, in the exercise of sound discretion. it should grant the remedy, and if granted, the terms and conditions which should be annexed to it" (Le.-ington & Fortieth Corp. v Cd/ag/zan,28 1 NY 526, 53 1 [ 19391). A court determining an application for mandatory injunctive relief is required to consider both the benefit to the plaintiff and the harm to the defendant that would follow the granting of such remedy (see Nnt Holding Corp. v Banks, 22 AD3d 471,802 NYS2d 214 [2d Dept 20051, lv denied 6 NY3d 715,823 NYS2d 356 [2006]; Sunrise Plaza Assoc. v I ~ i t e r t i a t i o t i a l S ~ ~ i ~ ~ i t Corp., 288 AD2d 300, 733 NYS2d 443 [2d Dept 20011, lv denied 97 NY2d Equities 612. 742 NYS2d 604 [2002]; Medvin v Grauer, 46 AD2d 912, 363 NYS2d 330 [2d Dept 1974]), as an injunction should not be granted if the injury to the plaintiff is not serious or substantial and the defendant would suffer "great inconvenience and loss" if the complained of acts were enjoined (see Forstrnann v Joray Holding Co., Inc., 244 NY 22 [ 19261; Sunrise Plaza Assoc. v International Summit Equities Corp., supra; Maspetli Branch Renltv v Wnldbaum, Inc., 20 AD2d 896, 249 NYS2d 32 [2d Dept 19641).
A review of the record reveals that the plaintiffs have not submitted any evidence that the easement has becn ohstructecl bj. the presence of poles, structures, fixtures, and lacrosse nets. There is evidence in the

record that a motor vehicle was parked in a manner that obstructed the easement in whole or in part on one occasion. that a +ire fence may have obstructed the easement for a period of time, and that there are two gates bliich lie across the path of the easement. Even if true, none of these obstructions warrant the issuance of a mandatory injuiictioii herein. It is undisputed that the wire fence now has a gate which allows passage over the easement towards Moriches Bay. The second gate is a wooden gate which fronts onto Dune Road. The defkiidants contend, and the plaintiffs do not dispute, that the two gates are unlocked. It is well settled that a Inndou ner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired (Lewis v Young, supra; Goldberg v Zoning Bd. o Appeals o City o Long Beacli, supra; J.C. Tarr, Q.P.R.T. v Delsener, 70 AD3d 774, 895 f f f NYS2tl 168 [2d Dept 20101; Guzzone v Branduriz, 57 AD3d 481, 868 NYS2d 755 [2d Dept 20081). plaintiffs have not submitted evidence sufficient to establish that thc dcfendants planted any bushes or trees within the boundaries of the easement. Photographs submitted by the plaintiffs and the det`cndmts are not conclusive. Moreover, Dinaburg admits that there is an area of "natural brush" along the
111 addition, thc

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D inabiu-g v h i i han Index No. 12-22839 Page No. 8
edge 01' Moriclies Bay. Absent an agreement otherwise, a servient owner is under no obligation to construct means for the en-joyinelit of tlie easement or to perform the work of keeping the facility in a state of repair (Tngle v Jakoh, 275 AD2d 573,712 NYS2d 681 [3d Dept 20001; Raksin v Crown-Kingston Realty Assoc., 254 AD2d 472.680 NYS2d 265 [2d Dept 19981; Allen v Greenberg, 21 Misc2d 763, 195 NYS2d 287 [Sup Ct, Queens County 19591). An easement for ingress and egress imposes no obligation on the servient owner other than the passivc duty of submitting to the dominant owner's use (Greenfarb v R. S. K. Realty Corp.. 256 N Y 130 [ 193 I ] , Mnswortliy vMeiidick, 66 AD2d 1017,411 NYS2d 737 [4th Dept 19781; Janes v Politis, 79 Misc 2cl 031, 361 NYS2d 613 [Sup Ct, Rockland County 19741). Accordingly, the plaintiffs' motion for partial suniniary judgment on its fifth claim is denied. The Court now turns to that branch of the plaintiffs' motion which seeks an order granting partial summary .judgment in their favor on the counterclaim set forth in the defendants' answer dated September 6, 201 2. Said counterclaim3seeks a declaration that the easement be amended to provide for its relocation so that the plaintiffs and Holdings, as owners of the dominant estates, shall each have the same rights in an easement along the easterly boundary of 524 Dune, and that said owners are not granted the right to build an elevated boardcialk or malkway over the easement unless same is required by law. For the reasons set forth above, the plaintiffs are entitled to partial summary judgment, and a declaration that the defendants may not relocate the easement from the westerly boundary of 524 Dune to the easterly boundary of said premises.
I Ionever. the Court finds that its inquiry should not end there. A court may search the record and grant summarvjudgnicnt in favor of a nonmoving party with respect to a cause of action or issue that is the subject of tlie motions before the court (CPLR 3212 [b]; Dunham v Hilco Construction Co., Iiic., 89 NY2d 425,654 NYS2d 335 [ 19961; 2133 Taconic, LLCvLartrjmServ., Inc., 85 AD3d 992,925 NYS2d 840 [2d Dept 201 I]; SltoreDev. Partners ~BoardofAssessors, AD3d 988,918 NYS2d 566 [2d Dept 201 I]; MasivKirMunsey 82 Park 020 LLC, 76 AD3d 514, 906 NYS2d 88 [2d Dept 20101). Upon reviewing the entirety of the records submitted, the Court determines as a matter of law that the defendants are entitled to summary judgment dismissing the plaintiffs' third claim which seeks a declaration that the plaintiffs may improve the easement and install a nalkway thereon.
As previously stated in its review of the deeds submitted in support of the plaintiffs' motion, the four properties iiivolvcd in this action were conveyed by the Grantor. The easement was "originally" created in the clced dated August 2 1, 1973, recorded at Liber 7473, page 547, which expressly set forth that "The party of the second part is not granted the right to build an elevated boardwalk or walkway over the easement area unless same is required by law. Grantor's deed which lies within the defendants' chain of title includes a provision that the easenient: `` ... as granted in a certain deed dated August 21, 1973 ... and for the benefit of the premises at 525 Dune Road to be granted in a deed from grantor conveying same at a later date." It is well settled that express easements are defined by the intent of the parties (Lewis v Young, supra; Guzzoiie v Brandariz, supra; Estntr Court, L L C ~ ~ S c h i i n l l , s i ~ ~ ~ ~ a ; s e e a l s o M e ~79 AD3du1666,914NYS2d 834 [4thDept 20101). ervSto t, The Court finds that the Grantor's intent was to prohibit the construction of a boardwalk or walkway by either of tlie dominant estates herein. To hold otherwise would lead to the absurd finding that the Grantor intended

I`he defendants' answer includes allegations under the heading "Sixth Defense, Counterclaim and CrossClaim'` which set forth the relief sought. Despite the heading, the Court notes that the subject pleading is an omnibus claim which includes 3 sixth defense to the plaintiffs' claims, a single counterclaim against the plaintiffs, and a single crossclaim against Holdings, all in one series of combined allegations.

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t)inaburg 1, Dcnihan Index NO. 12-2283`) Page No. 9 to prevent one dominant estate from improving the easement by construction of a walkway, while permitting the other. within the same defined location of the easement, to do so as of right. Accordingly. the Court grants the defendants partial summary judgment and a (declarationthat the plaintiffs are prohibited from building an elevated boardwalk or walkway over the easement area unless same is required by law. IToldings now moves for summary judgment in its favor granting it the relief requested in the crossclaims against the defendants set forth in its verified answer dated September 6, 201 2. In support of the motion. Holdings submits, among other things, the affidavit of one of its officers, copies of the pleadings, and deeds. I n his affidavit, Renzo R. Mori (Mori) swears that he is an officer in Holdings, that a deed in the chain or1itle of1 loldings' property contains the easement, and that Holdings and its guests have been unable to freely enjoy the benefits of the easement due to the defendants' interference. He states that Holdings is named as a defendant in the complaint as a means to determine the rights of the parties in the eascment, and that he disagrees with the defendants' contention that the proposed relocated easement is a "suitable replacement for the current easement ." l'hc Court finds that the first through fourth crossclaims in Holdings' answer are essentially identical to the first four claims in the complaint, and that Holdings has not submitted any evidence regarding its personal knowledge of the defendants' actions, alleged interference, or conversations regarding the easement. Thus, Holdings has failed to establish its entitlement to summary judgment 011 the second, third and fourth crossclaims against the defendants set forth in its answer. Nonetheless, based on Holdings submission, as well as a revie\ ofthe entire record, tlie Court finds that Holdings has established its entitlement to partial summary judgment on its first crossclaim against the defendants. In opposition to Holdings' motion, the defendants set forth the same facts and arguments as proffered in its opposition to the plaintiffs' motion for partial summary judgment. For the reasons set forth hereinabove, the Court finds that the defendants have failed to raise an issue ot'fact regarding the defined location of the easement, Holdings' rights as owner of a dominant estate, or their right to rclocate the easement. In addition, the Court notes that Holdings does not allege in its answer. nor does i t contcnd within its motion, that it has the right, or seeks the right, to build a walkway upon the easement. 1Hou ever, the defendants have included Holdings in the "Sixth Defense, Counterclaim, and Cross Claim" set forth in their answer. In light of the circumstance, the Court finds it expedient to grant the defendants partial summary judgment that Holdings is prohibited from building an elevated boardwalk or walkway over the casement area unless same is required by law. Accordingly. the Court finds that the plamtiffs are entitled to a declaration that they are the holders of non-euclusi e easement for pedestrian ingress and egress only to Moriches Bay three feet in width along the \ csterl!, houndary of'thc premises at 524 Dune FLoad, that the easement benefits the plaintiffs' property as the dominant estate and burdens the defendants' property as the servient estate, and that the defendants do not have the right to relocate said easement absent the consent ofthe plaintiffs and Holdings. In addition, the Court finds that Holdings is entitled to a declaration that it is the holder of a non-exclusive easement three feet in width along the westerly boundary of 524 Dune Road ror the right of ingress and egress only to Moriches Bay, that the easement benefits Holdings' property as the dominant estate and burdens the defendants' property as the servient estate, and that thc defendants do not have the right to relocate said easement absent the consent of Holdings and the plaintiffs. The Court further finds that the defendants are entitled to a declaration that the plaintiffs and I ioldings do not have tlie right to build an elevated boardwalk or walkway over the easement area unless s m c is required by law.
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Di nabu rg v Deni han I I I ~ C X 12-22839 NO. Page No. 10

Tlic Court directs that the causes of action as to which summary judgment was granted are hereby severed and that the remaining causes of action shall continue (see CPLR 321 2 [e] [ 11).
Settle judgment.

The foregoing constitutes the Order of this Court.

Dated: April 1, 2013 Riverhead, NY

- FINAL DISPOSITION -

X

NON-FINAL DISPOSITION



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