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In Shelmerdine, for example, the court denied defendant's motion to set aside its verdict when the expert testimony sought to be provided was not proffered at trial and defendant failed to proffer an explanation for failing to do so (id. at 1202, 40 N.Y.S.3d 248).
Summary of this case from Brewster v. ThazinOpinion
10-27-2016
Robert SHELMERDINE et al., Respondents, v. Nancy MYERS, Appellant.
Nicholas E. Tishler, Niskayuna, for appellant. Michael W. Smrtic, Gloversville, for respondents.
Nicholas E. Tishler, Niskayuna, for appellant.
Michael W. Smrtic, Gloversville, for respondents.
Before: PETERS, P.J., EGAN JR., LYNCH, ROSE and AARONS, JJ.
PETERS, P.J. Appeals (1) from an order and judgment of the Supreme Court (Nolan Jr., J.), entered November 26, 2014 in Saratoga County, upon a decision of the court in favor of plaintiffs, and (2) from an order of said court, entered March 12, 2015 in Saratoga County, which denied defendant's motions to set aside the verdict and for reargument and/or renewal.
Plaintiffs and defendant own neighboring parcels of real property near Sacandaga Lake in the Town of Edinburg, Saratoga County. In 1996, plaintiffs and defendant's predecessor-in-interest entered into a written agreement whereby they mutually agreed to allow one another and their heirs and assigns, for a period of 99 years, “the right to ingress and egress their properties and tool sheds” over a strip of land situated between the parties' homes. After acquiring her parcel in 2012, defendant constructed a new residence on the property and, in so doing, erected an earthen berm and retaining rock wall that substantially encroached onto the mutual easement. Plaintiffs thereafter commenced this action seeking, among other things, an order directing defendant to remove the berm. Following a nonjury trial, Supreme Court found defendant's actions to have unreasonably interfered with plaintiffs' rights under the easement and directed defendant to remove the berm and rock wall and restore the side yard to its previous condition. The court denied defendant's subsequent motions to set aside the judgment and for leave to reargue and/or renew, and these appeals by defendant ensued.
Although plaintiffs also asserted causes of action for trespass and nuisance, they later withdrew those claims.
It is well established that “[t]he 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” (Sambrook v. Sierocki, 53 A.D.3d 817, 818, 861 N.Y.S.2d 483 [2008] [internal quotation marks and citations omitted]; accord Boice v. Hirschbihl, 128 A.D.3d 1215, 1216, 10 N.Y.S.3d 648 [2015] ). Where, as here, “the extent of a right-of-way is not specified, it is construed to be that which is necessary for the use for which it was created” ( Taverni v. Broderick, 111 A.D.3d 1197, 1199–1200, 975 N.Y.S.2d 807 [2013] [internal quotation marks and citations omitted]; see Phillips v. Iadarola, 81 A.D.3d 1234, 1235, 917 N.Y.S.2d 392 [2011] ). While a landowner burdened by an easement of ingress and egress may narrow it or cover it, “ ‘the change [must] not frustrate the parties' intent or object in creating the right[-]of[-]way, must not increase the burden on the easement holder, and must not significantly lessen the utility of the right[-]of[-]way’ ” (MacKinnon v. Croyle, 72 A.D.3d 1356, 1358, 899 N.Y.S.2d 422 [2010], quoting Lewis v. Young, 92 N.Y.2d 443, 452, 682 N.Y.S.2d 657, 705 N.E.2d 649 [1998] ; see Thibodeau v. Martin, 119 A.D.3d 1015, 1016, 990 N.Y.S.2d 274 [2014] ; Marek v. Woodcock, 277 A.D.2d 864, 866, 716 N.Y.S.2d 812 [2000], lv. dismissed 96 N.Y.2d 792, 725 N.Y.S.2d 641, 749 N.E.2d 210 [2001] ). That is, “a landowner may not unilaterally change a right[-]of[-]way if that change impairs [the] enjoyment of the easement holder's rights” (Lewis v. Young, 92 N.Y.2d at 452, 682 N.Y.S.2d 657, 705 N.E.2d 649 ).
Here, as reflected in the language of the grant and confirmed by the parties' trial testimony, the purpose of the easement's creation was to allow the owners of these adjoining properties to travel over and upon each other's abutting side yard to access their respective backyards and sheds and to transport boats, machinery and equipment between the front and back of their homes. Photographs admitted into evidence at the trial reveal that the berm at issue is at least two feet high, slopes in a downward direction and extends to within 10 inches of plaintiffs' exterior side stairway. Plaintiffs presented detailed testimony regarding the manner in which defendant's installation of the berm and rock wall impaired the access to their backyard and their ability to move items such as a grill, compressor, power washer, lawn mower, wheelbarrow, rowboat and kayaks from their backyard shed to the front of the house. Although defendant claimed that the alterations did not lessen the utility of the easement area or restrict plaintiffs' access, Supreme Court credited plaintiffs' proof to the contrary and we find no basis upon which to disturb that assessment (see MacKinnon v. Croyle, 72 A.D.3d at 1358, 899 N.Y.S.2d 422 ; Chekijian v. Mans, 34 A.D.3d 1029, 1031, 825 N.Y.S.2d 281 [2006], lv. denied 8 N.Y.3d 806, 833 N.Y.S.2d 426, 865 N.E.2d 843 [2007] ). Further, defendant failed to proffer any evidence to support her claim that construction of the berm was necessary to protect the home's foundation. Inasmuch as defendant's alterations “substantially interfered with [plaintiffs'] reasonable use and enjoyment of the right-of-way in light of the convenience to which they had become accustomed” (Marek v. Woodcock, 277 A.D.2d at 866, 716 N.Y.S.2d 812 ), Supreme Court properly directed that the berm and rock wall be removed and the easement area restored to its prior condition (see MacKinnon v. Croyle, 72 A.D.3d at 1358, 899 N.Y.S.2d 422 ).
Defendant's challenges to the denial of her posttrial motions are similarly unavailing. With respect to her CPLR 4404(b) motion to set aside the judgment, “[t]he statute leaves the circumstances for granting such relief to the discretion of the court, and its decision whether to grant the motion will not be disturbed absent an abuse of that discretion” ( matter of ramsey h. [beNjamin K.], 99 a.d.3D 1040, 1043, 953 N.Y.S.2d 693 [2012] [citations omitted], lv. denied 20 N.Y.3d 858, 2013 WL 452277 [2013] ; see Micallef v. Miehle Co., Div. of Miehle–Goss Dexter, 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 348 N.E.2d 571 [1976] ). In support of the motion, defendant offered the affidavit of an engineer who opined that removal of the berm and rock wall “would severely compromise the foundation and structure of the building.” While defendant claims that this is new evidence, the record reflects that, during a pretrial hearing on plaintiffs' application for a preliminary injunction, defendant's counsel argued that the berm and rock wall were necessary to ensure the “structural integrity of [the] home” and indicated that defendant would be proffering the opinion of an engineer to support that position. However, no such testimony was offered at the ensuing trial, nor did defendant proffer an explanation for her failure to do so or present any other evidence to support her claim regarding the necessity of the existing berm. Under such circumstances, Supreme Court properly exercised its discretion in declining to set aside its decision or order a new trial (see Turco v. Turco, 117 A.D.3d 719, 723, 985 N.Y.S.2d 261 [2014] ; Matter of Ramsey H. [Benjamin K.], 99 A.D.3d at 1043, 953 N.Y.S.2d 693 ; Matter of Xuong Trieu v. Tax Appeals Trib. of State of N.Y., 222 A.D.2d 743, 745, 634 N.Y.S.2d 878 [1995], appeal dismissed 87 N.Y.2d 1054, 644 N.Y.S.2d 146, 666 N.E.2d 1060 [1996], lv. denied 88 N.Y.2d 809, 647 N.Y.S.2d 714, 670 N.E.2d 1346 [1996] ). Finally, defendant's motion to renew—which duplicated the arguments made in her motion to set aside the judgment—was also properly denied (see generally Paterno v. Strimling, 107 A.D.3d 1233, 1234, 968 N.Y.S.2d 643 [2013] ; Carr–Harris v. Carr–Harris, 98 A.D.3d 548, 551, 949 N.Y.S.2d 707 [2012] ).
To the extent that this motion sought reargument, the denial of such a motion is not appealable (see Neroni v. Follender, 137 A.D.3d 1336, 1339, 26 N.Y.S.3d 621 [2016], appeal dismissed 27 N.Y.3d 1147, 37 N.Y.S.3d 61, 57 N.E.3d 1099 [2016] ).
ORDERED that the order and judgment and order are affirmed, with costs.
EGAN JR., LYNCH, ROSE and AARONS, JJ., concur.