Capersino v Gordon

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[*1] Capersino v Gordon 2012 NY Slip Op 50820(U) Decided on May 3, 2012 Supreme Court, Suffolk County Pastoressa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 3, 2012
Supreme Court, Suffolk County

Louis Capersino and DOREEN P. CAPERSINO, Plaintiffs,

against

Beth Gordon and BRIGITA GORDON, Defendants



09-5491



SINNREICH KOSAKOFF & MESSINA LLP

Attorney for Plaintiffs

267 Carleton Avenue, Suite 301

Central Islip, New York 11722

FIDELITY NATIONAL LAW GROUP

Attorney for Defendants

350 Fifth Avenue, Suite 3000

New York, New York 10118

Joseph C. Pastoressa, J.



it is, ORDERED that this motion by plaintiffs for an order pursuant to CPLR 3212 (e) granting partial summary judgment on their first cause of action and a declaration of their rights and interest in a cross-easement over a common driveway is denied; and it is further

ORDERED that this cross motion by defendants for an order pursuant to CPLR 3212 (e) granting partial summary judgment in their favor dismissing, with prejudice, plaintiffs' first cause of action and second cause of action is granted. [*2]

This is an action pursuant to article 15 of the Real Property Actions and Proceedings Law for a determination of rights to use a shared, or common, driveway and for damages for, among other things, trespass. Plaintiffs, Louis Capersino and Doreen P. Capersino, are the owners of real property known as 324 Wading River Road in Manorville, Town of Brookhaven, New York, and defendants, Beth Gordon and her mother Brigita Gordon, are the owners of adjoining real property known as 328 Wading River Road in Manorville, Town of Brookhaven, New York. Plaintiffs' property fronts Wading River Road, which runs north to south. Defendants' property is a flag lot adjoining the westerly border of plaintiffs' property. The "pole"ofdefendants' flag lot is a 16-foot wide driveway that runs parallel to the northern boundary of plaintiffs' property from its entrance on Wading River Road and continues along the northern boundary of defendants' property to its westerly end. The parties use this driveway to access Wading River Road.

Prior to the parties' respective ownership, the two properties comprised one lot which was owned by non-parties Walter Anderson and Justine Anderson (the Andersons), as evidenced by a deed dated December 30, 1987. The one lot was subdivided into two parcels. A determination of the Zoning Board of Appeals of the Town of Brookhaven (Brookhaven ZBA) on September 21, 1988 granted to Walter Anderson frontage and side yard variances for the construction of a single family dwelling on each parcel with conditions including, the "rear buffer 100 ft. on" both parcels "to be green forever," and "one driveway-both houses with cross-easement."

The Andersons sold 328 Wading River Road in 1989 but held title to 324 Wading River Road until they deeded it to plaintiffs on October 30, 1991. The deed dated April 10, 1989 conveying the flag lot 328 Wading River Road from the Andersons to defendants' predecessors in interest granted the Andersons and their successors in interest an express easement for ingress to and egress from 324 Wading River Road over a portion of the "pole" of the flag lot. The April 10, 1989 deed expressly provides,

Reserving to the party of the first part his heirs, assigns, and successors in interest an easement for ingress and egress over the following described parcel. Said easement shall run with the land.

Beginning at a point on the Westerly side of Wading River Road, which point is 966.53 feet North of the intersection formed by the Northerly side of Jerusalem Hollow Road with the Westerly side of Wading River Road.

Running thence N. 86 00' 00" W.- 400.00 feet, thence N. 04 00' 00" E. - 16.00 feet, thence S. 86 00' 00" E. - 402.09 feet to a point on the Westerly side of Wading River Road, thence Southerly along the Westerly side of Wading River Road S. 11 26' 30" W. - 16.14 feet to the point or place of Beginning.

Defendant Beth Gordon acquired title to 328 Wading River Road by deed dated December 8, 2004 and then conveyed title to herself and her mother by deed dated May 28, 2005. The language of the express easement grant is contained in the subsequent deeds to defendant Beth Gordon and then to Beth Gordon and Brigita Gordon. There is no reference to a right of [*3]way for ingress and egress in plaintiffs' deed.

By their amended complaint, plaintiffs claim that they have been denied access to the rear portion of their property adjacent to the common driveway by the construction by defendants of a gate across the common driveway approximately 400 feet west of the entrance of the driveway on Wading River Road. In addition, plaintiffs claim that their right to full use of the driveway from its entrance on Wading River Road along the full 816.60 feet length of their property has been denied, and that their property has been encroached upon by structures that form part of the gate. Plaintiffs assert a first cause of action to quiet title and for a declaratory judgment. They assert a second cause of action for a permanent injunction enjoining defendants from taking any further actions to limit or prevent plaintiffs' non-exclusive use, occupancy and possession of the common driveway to the full extent of 816.60 feet from the frontage on Wading River Road. In addition, plaintiffs seek an order directing defendants to permanently dismantle and remove the gate erected by defendants across the common driveway at a point approximately 400 feet from the frontage on Wading River Road. Plaintiffs also assert a third cause of action for trespass, ejectment and property damage, a fourth cause of action for trespass, a fifth cause of action to recover for intentional tort, and a sixth cause of action for a prescriptive easement or adverse possession. In their answer to the amended complaint with affirmative defenses, defendants assert affirmative defenses that include failure to state a cause of action against defendants, and that plaintiffs' claims are barred in whole or in part by plaintiffs' own negligent acts or omissions.

Plaintiffs now move for partial summary judgment on their first cause of action to quiet title and a declaration of their rights and interest in a cross-easement over the common driveway. Plaintiffs seek a determination that they have a cross-easement and right of non-exclusive use, occupancy and possession over the entire length of the common driveway that coincides with their property, extending 816.60 feet from its frontage on Wading River Road to the rear property line. They argue that to the extent that defendants' deeds are inconsistent with the condition in the Brookhaven ZBA's determination, the deeds should be interpreted and reformed to conform with the determination. In addition, plaintiffs seek a declaration that defendants are barred from claiming exclusive right to use, occupancy and possession of the common driveway to the exclusion of plaintiffs to the full length of plaintiffs' property, 816. 60 feet. Their submissions in support of the motion include their original verified and their amended unverified complaints, defendants' answer to the amended complaint with affirmative defenses, plaintiffs' deed, defendants' deeds, and the determination dated September 22, 1988 of the Brookhaven ZBA.

Defendants cross-move for partial summary judgment dismissing, with prejudice, the first cause of action to quiet title and the second cause of action for a permanent injunction on the grounds that the land of the common driveway is owned by defendants and the express easement, as clearly defined and delineated in the deeds to 328 Wading River Road, granted plaintiffs only a 400-foot long right of ingress and egress over the common driveway. In addition, defendants argue that the Brookhaven ZBA did not define the width or length of the easement in its determination such that it contains no support for plaintiffs' claims to an 816-foot long common driveway easement. They also argue that they have an inalienable right as property owners to [*4]erect a gate wherever they choose on their property. Defendants maintain that plaintiffs can continue to access the rear of their property, which contain woods, from their own property rather than using the adjacent driveway. Defendants note that plaintiffs' motion is unsupported by any affidavit from plaintiffs. Defendants' submissions in support of their cross motion include the amended complaint, defendants' answer to amended complaint with affirmative defenses, the aforementioned deeds, the determination dated September 22, 1988 of the Brookhaven ZBA, the affidavit dated May 4, 2011 of defendant Brigita Gordon, and a survey of plaintiffs' property indicating the easement area.

Defendant Brigita Gordon states in her affidavit that plaintiffs' claim that they need to enter defendants' property to access their own backyard is inaccurate inasmuch as plaintiffs have at least three other roadways, all going through their own property, which would allow them to access their backyard. She adds that she erected the gate on her own property which is not subject to the easement. Defendant Brigita Gordon informs that half of the gate has been knocked down for reasons unknown to her.

It is well settled that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., supra at 324, citing to Zuckerman v City of New York, supra at 562).

"[A]n easement can be created only by one who has title to, or an estate in, the servient tenement" (5—40 Warren's Weed, New York Real Property § 40.10 [2007]; see Simone v Heidelberg, 9 NY3d 177, 181-182; Matter of Estate of Thomson v Wade, 69 NY2d 570, 573—574). An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it (the dominant estate) (see Will v Gates, 89 NY2d 778). One does not possess or occupy an easement or any other incorporeal right. An easement derives from use, and its owner gains merely a limited use or enjoyment of the servient land (Di Leo v Pecksto Holding Corp. 304 NY 505 [internal quotations and citations omitted]). Express easements are governed by the intent of the parties (see Lewis v Young, 92 NY2d 443; Estate Ct., LLC v Schnall, 49 AD3d 1076). In determining the extent of an easement claimed under an express grant or reservation, the ordinary rules of construction and interpretation apply, which are essentially those applicable to other written instruments, and to deeds generally (see Henricksen v Trails End Co., 303 AD2d 458, lv denied 100 NY2d 506; Route 22 Assocs. v Cipes, 204 AD2d 705). As applied with respect to the grant or reservation of an easement, the primary rule of construction of deeds is that the real intention of the parties is to be sought and carried out whenever possible, at least when not contrary to settled principles of law or statutory prohibitions [*5](see id.).

The submissions reveal that Anderson was granted variances by the Brookhaven ZBA with certain conditions which included that there be one driveway and that both houses have cross-easements over said driveway (see e.g. Wild Oaks, LLC v Beehan, 77 AD3d 924 [planning board conditioned approval of application upon submission of a common driveway easement]; Save Open Space v Planning Bd. of Town of Newburgh, 74 AD3d 1350 [subdivision approval subject to condition of execution of reciprocal easement agreement]). A cross-easement or reciprocal easement over a driveway can be created by deed or agreement in which each owner of a portion of a driveway grants the other owner an easement over their respective portion so as to share the use of the entire driveway (see Krosky v Hatgipetros, 150 AD2d 344 [deeds to both parcels contained reciprocal easements for rights-of-way over four-foot strip of driveway which belonged to adjacent owner for purpose of ingress and egress]; LeBaron v DPL & B, LLC, 35 AD3d 391 [reciprocal cross-easement agreement for shared use of driveways]; Scorca v Tricomi, 256 AD 837, affd 281 NY 873 [easement created by grant, executed by owners of adjacent parcels of land, over strip of property ten feet wide, five feet of which owned by each of the parties to the grant, constituting a driveway from the street to rear of premises]).

The cross-easements or reciprocal easements over the sole driveway, as contemplated by the Brookhaven ZBA, were not created by the Andersons and defendants' predecessors in title and, in any event, their creation, under the circumstances, was an impossibility. It is well settled that a person cannot have an easement in his or her own land, since all of the uses of an easement are fully comprehended in his or her general rights of ownership (see Will v Gates, supra; Town of Pound Ridge v Golenbock, 264 AD2d 773). The location of the driveway herein is entirely on property belonging to 328 Wading River Road. Thus, the owners of said property, defendants and their predecessors in interest, could grant a driveway easement to the owners of 324 Wading River Road but could not have a reciprocal easement in their own property.

Instead, the Andersons created an express easement for ingress and egress by grant in the deed to the servient estate, 328 Wading River Road, of defendants' predecessors in title for the benefit of the dominant estate, 324 Wading River Road, which the Andersons retained until they sold it to plaintiffs in 1991. At the time that the easement was created, plaintiffs' predecessors-in-interest to the benefitted parcel, the Andersons, had title to that parcel and the right to encumber the burdened parcel with an easement benefitting the benefitted parcel (see Cerniglia v Church of Holy Name of Mary, 72 AD3d 862).

The deed creating the subject easement expressly grants the Andersons and their successors in interest in 324 Wading River Road a specifically defined right-of-way which is 400 feet long beginning from the entrance of the driveway on Wading River Road and is 16 feet wide. The easement is for the limited purpose of giving the owners of 324 Wading River Road vehicular ingress to and egress from the property to the public road and not for the purpose of accessing the entire length of the property. The easement provided plaintiffs and their predecessors in title with a right of passage rather than a right in the physical passageway itself [*6](see Lewis v Young, supra; Guzzone v Brandariz, 57 AD3d 481). In the absence of a demonstrated intent to provide otherwise, a landowner 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). Once created, the easement continues to pass with the dominant estate unless it is extinguished by abandonment, conveyance, condemnation or adverse possession (see Will v Gates, supra).

As the owner of property burdened by an express easement for ingress and egress, defendants are entitled to install a gate across the driveway so long as the gate does not impair the right of passage of the owner of the benefitted property, plaintiffs (see J.C. Tarr, Q.P.R.T. v Delsener, 70 AD3d 774). Thus, defendants are permitted to place a gate across the driveway immediately outside of the perimeter of the easement, provided that the gate does not shorten the length of the right-of-way to less than 400 feet from the Wading River Road entrance (see J.C. Tarr, Q.P.R.T. v Delsener, supra).

Based on the foregoing, the Court declares that plaintiffs do not have a cross-easement inasmuch as they own no portion of the land forming the common driveway, and plaintiffs do not have a right of non-exclusive use, occupancy and possession over the entire length of the common driveway from its entrance on Wading River Road to their rear property line. Instead, plaintiffs have a right of ingress and egress over the first 400 feet of the common driveway beginning at its entrance on Wading River Road. In addition, the Court declares that defendants are not barred from claiming exclusive right to use, occupancy and possession of the common driveway to the exclusion of plaintiffs beyond the first 400 feet of the driveway from its entrance on Wading River Road. Plaintiffs' request for summary judgment on their first cause of action is denied and defendants' request for summary judgment dismissing the first cause of action, with prejudice, is granted.

Moreover, plaintiffs' request for summary judgment on their second cause of action for a permanent injunction enjoining defendants from taking any further actions to limit or prevent plaintiffs' non-exclusive use, occupancy and possession of the common driveway to the full extent of 816.60 feet from the frontage on Wading River Road is denied. Furthermore, plaintiffs' request for an order directing defendants to permanently dismantle and remove the gate erected by defendants across the common driveway at a point approximately 400 feet from the frontage on Wading River Road is denied. Defendants' request for summary judgment dismissing plaintiffs' second cause of action, with prejudice, is granted.

Accordingly, the motion is denied and the cross motion is granted. The first and second causes of action of plaintiffs' amended complaint are dismissed. The remaining claims are severed and continued.

Dated: May 3, 2012_______________________________________

HON. JOSEPH C. PASTORESSA, J.S.C.

[*7]

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