McColgan v Brewer

[*1] McColgan v Brewer 2010 NY Slip Op 51421(U) [28 Misc 3d 1221(A)] Decided on June 8, 2010 Supreme Court, Ulster County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2010
Supreme Court, Ulster County

John McColgan, Plaintiff,

against

Donald Brewer, PHILIP KIRSCHNER, ROTHE ENGINEERING & CONSTRUCTION and CHICAGO TITLE INSURANCE COMPANY, Defendants.



08-0071



Law Offices of Michael G. Dowd

Attorneys For Plaintiff

Niall Mac Giollabnui, Esq., of counsel

112 Madison Avenue

Third Floor

New York, New York 10016-7416

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.

Attorneys for Defendant Philip Kirschner

(Panagiota K. Javaras, Esq., of counsel)

20 Corporate Woods Boulevard

Albany, New York 12211-2362

Milber Makris Plousadis & Seiden, LLP

Attorneys for Rothe Engineering & Construction

Thomas H. Kukowski, Esq., of counsel 3 Barker Avenue

6th Floor

White Plains, New York 10601

Jacobowitz and Gubits, LLP

Attorneys for Defendant Chicago Title Insurance Company

David G. Gandin, Esq., of counsel

158 Orange Avenue

P.O. Box 367

Walden, New York 12586

Henry F. Zwack, J.

In this proceeding, there are multiple pending motions. Defendant Chicago Title Insurance Company (Chicago Title) moves for summary judgment. Plaintiff opposes Chicago Title's motion and cross-moves for partial summary judgment. Defendant Philip Kirschner moves to preclude expert testimony of plaintiff. Plaintiff opposes the motion and cross-moves for costs or sanctions upon defendant Kirschner for making a frivolous motion.

On its motion for summary judgment, Chicago Title argues that it can be determined as a matter of law that plaintiff has legal access to his property pursuant to an easement. Chicago Title seeks summary judgment on the grounds that plaintiff's claims against said defendant are based upon plaintiff's claim that he lacks legal access to his property.

Plaintiff opposes Chicago Title's motion and cross-moves for partial summary judgment, seeking a determination that plaintiff's parcel of real property is not benefitted by a right-of-way from State Route 32. Plaintiff argues that, contrary to the assertions in the submissions on Chicago Title's motion, there is no right-of-way that benefits plaintiff's property.

In opposition, defendant Chicago Title argues that plaintiff's analysis in opposition to Chicago Title's motion and in support of plaintiff's cross-motion fails to consider the totality of the circumstances. Defendant Chicago Title argues that right-of-way agreements executed in 1953 benefit plaintiff's real property and that the lack of an express deed is not dispositive under the circumstances.

In opposition to plaintiff's cross-motion, defendant Rothe Engineering & Construction ("Rothe") incorporates by reference the affidavit of Chicago Title's expert submitted in support of Chicago Title's motion for summary judgment and also [*2]incorporates by reference the affidavit of defendant Kirschner's expert, submitted in opposition to plaintiff's cross-motion for partial summary judgment. Rothe argues that there does not appear to be a dispute as to whether a physical right-of-way exists from plaintiff's property to State Route 32, but rather the disputed issue is whether plaintiff may use the right-of-way. Rothe argues that the expert affidavits submitted by Chicago Title and Kirschner raise triable questions of fact that warrant denial of plaintiff's partial summary judgment motion.

In opposition to plaintiff's cross-motion, defendant Kirschner argues that plaintiff's cross-motion for partial summary judgment must be denied because a triable issue of fact exists regarding whether plaintiff is entitled to use the right-of-way that undisputedly exists from plaintiff's property to State Route 32. Defendant Kirschner also requests an order granting said defendant partial summary judgment determining that plaintiff's real property is benefitted by a right-of-way.

In reply, plaintiff argues that the easement agreements do not support the conclusions set forth in the opposition papers of defendant Kirschner. Plaintiff also notes that there are no factual disputes presented in that entitlement to use the right-of-way is an issue of law to be determined by the Court.

Regarding defendant Kirschner's motion, he argues that plaintiff has submitted supplemental expert information without leave of court and also that the information provided does not meet the requirements of CPLR 3101(d) because it is vague and insufficient, and also seeks to offer medical and psychiatric treatment testimony which would be in violation of this Court's prior decision and order dated July 17, 2009.

Lastly, plaintiff opposes defendant Kirschner's motion and cross- moves for an award of costs or sanctions against defendant Kirschner for filing a frivolous motion that did not comply with court rules. Plaintiff argues that defendant Kirschner filed his motion to preclude expert testimony without affirming that counsel had conferred in good faith to resolve the issues raised by the motion as required by 22 NYCRR 202.7.

In reply, defendant Kirschner argues that said defendant did confer prior to filing the motion and that further communication would have been futile under the circumstances. Defendant Kirschner also argues that his motion is not frivolous and that plaintiff's motion for costs and sanctions should therefore be denied.

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The focus should be on issue identification rather than issue determination (Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the [*3]opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding (see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994]; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept 1998]).

Regarding Chicago Title's motion and plaintiff's cross-motion regarding plaintiff's legal right to use an easement benefitting plaintiff's property, the Court finds that Chicago Title has failed to set forth prima facie entitlement to judgment as a matter of law in its favor. Chicago Title argues that an easement was created in favor of plaintiff's land by virtue of a series of recorded deeds. However, the Court does not find that Chicago Title has established prima facie evidence establishing an easement in favor of plaintiff's land as a matter of law.

The Court notes that there is no dispute that a physical right-of-way exists from Route 32 to plaintiff's property. A 50 foot wide easement, known as Alberts Lane, runs through plaintiff's property and to the north, through the properties of plaintiffs' northerly neighbors, before connecting with Route 32. Albert's Lane also runs to the south of plaintiff's property, onto the property of one of plaintiff's southerly neighbors. From north to south, the property owners are as follows: 1) Clark (Evelyn Jurgen formerly); 2) DeFalco (Olga Burns formerly); 3) Estate of Dession; 4) Plaintiff McColgan (Florence Bancroft and Edith M. Kelley formerly); 5) Rose Klepeis.

The land plaintiff now owns was originally part of a larger parcel owned by Edith M. Kelley. In 1955, due to the construction of the New York State Thruway, the State acquired some of the middle of the original Kelley parcel, resulted in Kelley owning two separate parcels, one to the west of the Thruway and one to the east of the Thruway. Plaintiff's parcel is the parcel to the east of the Thruway formerly owned by Kelley. As a result of the Thruway construction, plaintiff, along with his southerly and northerly neighbors, needs to use Albert's Lane to reach Route 32.

In 1953, Klepeis, plaintiff's southerly neighbor, entered into a series of right-of-way agreements with the owners of the northerly parcels to secure her access to Route 32 via Alberts Lane. It appears undisputed that plaintiffs' predecessor in title, Kelley, was never a party grantee to a right-of-way agreement granting an easement in favor of her property over the northerly neighboring properties between her property and Route 32.

Chicago Title's motion relies upon the argument that an easement has been created to the benefit of plaintiff's land by virtue of a common scheme, by virtue of the language in filed deeds that create an easement, and by filed maps that precede plaintiff's ownership of the parcel and which evidence the easement. It is not clear the basis for the argument that common scheme exists, however the Court notes that the language in the filed right-of-way agreements, to which plaintiff's predecessor in title was never a grantee, makes clear that the grantor party is being granted a right-of-way over the land of [*4]the grantee party. While the Court notes that the right-of-way agreements appear to have been filed at the same time, this is not sufficient to establish a common scheme.

Chicago Title points to language in the right-of-way agreements that refers to the right-of-way being "kept open and unobstructed as a highway for the use and benefit of the properties owned by the parties hereto, as well as other parties, and the owners and occupants thereof as a means of ingress and egress, by foot or vehicle." Chicago Title argues that this language evidences that the right-of-way agreements benefitted other parties, beyond the parties to the agreement. Based upon the wording of the agreements, the Court does not concur that the agreements result in a right-of-way for the benefit of plaintiff's property (see, e.g., Gross v Cizauskas, 53 AD2d 969 [3d Dep't 1976]).

The Court is also unaware of the legal basis for Chicago Title's argument that plaintiff's property benefits from right-of-way agreements created for the express benefit of other properties and other property owners, and that a map showing Alberts Lane and Route 32 creates an easement to the benefit of plaintiff's property. Based upon the foregoing, the Court finds that Chicago Title has failed to establish prima facie entitlement to judgment as a matter of law.

Regarding plaintiff's cross-motion for partial summary judgment, the Court finds that plaintiff has established prima facie entitlement to judgment as a matter of law. Plaintiff has established that neither plaintiff nor his predecessors in title obtained a right-of-way in favor of the subject property over the northerly properties between plaintiff's property and Route 32. The language in the recorded right-of-way agreements does not convey any valid interests in favor of third parties such as plaintiff (see, e.g., Thomson v Wade, 69 NY2d 570, 573-74 [1987]). While the language may indicate the possibility that other parties may be granted interests in the same land, and that the interest being granted to the grantee is not exclusive, it is not sufficient by itself to establish a third party's rights or interests in that land (see id). The Court also concurs with plaintiff that the facts of the present case do not present a situation involving a common scheme or plan of development (see, e.g., Bristol v Woodward, 251 NY 275 [1929]; Graham v Beermunder, 93 AD2d 254 [2nd Dep't 1983]). Plaintiff also set forth legal authority that the facts of the present case do not allow for a finding of an easement by prescription or an easement by implication. Based upon the foregoing, the Court finds that plaintiff has established prima facie entitlement to partial summary judgment as a matter of law.

The Court also notes its concurrence with plaintiff that the fact the Estate of Dession attempted to acquire right-of-way agreements after the date of the Kleipeis right-of-way agreements is further support that the Kleipeis right-of-way agreements were neither intended nor understood to grant rights-of-way to third parties.

The Court does not find that the opposition papers by Chicago Title, Rothe, or Kirschner raise a triable issue of fact with regard to plaintiff's cross-motion. The Court concurs with plaintiff that the question of whether the existing right-of-way agreements benefit plaintiff's property is a question of law (Montfort v Benedict, 199 AD2d 923 [3d [*5]Dep't 1993]) and that there are no factual disputes between the parties relevant to this determination. The Court does not find that legal authority supports a finding that the 1953 right-of-way agreements benefit plaintiff's property. As set forth above, the Court finds that no right-of-way benefits plaintiff's property as a matter of law based upon the evidence presented. Based upon the foregoing, the Court finds that defendants have not raised an issue of fact as to whether plaintiff's property has the legal right to benefit from the physical right-of-way across plaintiff's property and the properties of his northerly neighbors to reach Route 32.

Regarding defendant Kirschner's motion to preclude expert testimony of plaintiff, Kirschner argues that plaintiff's supplemental expert disclosure dated February 8, 2010 required court permission and that plaintiff is precluded from offering testimony of medical and psychiatric treatment experts based on the Court's prior decision. Kirschner notes that correspondence dated March 3, 2010 was forwarded to plaintiff, objecting to plaintiff's expert disclosure of multiple grounds. Kirschner also argues that information regarding to potential experts, Kenneth L. Ayers Esq. and Laura E. Ayers Esq., was provided without the required detail and that therefore their testimony should be precluded.

Plaintiff opposes Kirschner's motion and cross moves for costs and sanctions, arguing that Kirschner failed to comply with Trial Court Rule 202.7, requiring a good faith effort to resolve discovery disputes prior to making a motion. Plaintiff also argues that court leave was not required for plaintiff's supplemental expert disclosure because plaintiff's expert disclosure was not untimely.

In reply, Kirschner argues that the correspondence dated March 3, 2010 was a good faith effort to confer regarding the issues that are now the subject of this motion. Kirschner argues that his motion is not frivolous.

While the Court declines to find Kirschner's motion frivolous, the Court concurs with plaintiff that under the circumstances it was incumbent upon Kirschner to follow up the March 3, 2010 correspondence in some manner prior to bringing the present motion. The Court also notes that it is this court's opinion that the Third Judicial District Expert Disclosure Rule does not contemplate the requirement of court leave for supplemental expert disclosure submitted by plaintiff prior to the filing of the note of issue. The Court notes that the note of issue has yet to be filed in this proceeding. While the Court concurs with Kirschner that it appears some of plaintiff's expert disclosure will need to be supplemented in order to comply with CPLR 3101(d), and that some of the proposed testimony may exceed the extent of admissible proof given the nature of the case as detailed in the Court's prior decision, the Court finds that it is incumbent upon the parties to confer in good faith regarding these issues and that the present motion is premature on this basis.

Accordingly, it is

[*6]ORDERED, that defendant Chicago Title Insurance Company's motion for summary judgment is denied; and it is further

ORDERED, plaintiff's motion for partial summary judgment is granted, as set forth above; and it is further

ORDERED, that defendant Philip Kirschner's motion to preclude expert testimony of plaintiff is denied; and it is further

ORDERED, that plaintiff's motion for costs and sanctions is denied.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:June 8, 2010

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice