Opinion
37 CA 19-02309
07-16-2021
Michael J. TARSEL and Suzanne M. Tarsel, Plaintiffs-Respondents, v. James J. TROMBINO, Defendant-Appellant.
PULLANO & FARROW, ROCHESTER (LANGSTON D. MCFADDEN OF COUNSEL), FOR DEFENDANT-APPELLANT. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN G. FELTER OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PULLANO & FARROW, ROCHESTER (LANGSTON D. MCFADDEN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN G. FELTER OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. Memorandum: Plaintiffs have an easement over a private road and strip of land owned by defendant, which provides access to their driveway and property. The condition of the strip of land deteriorated over time, and plaintiffs approached defendant about paving the strip to improve vehicular access to their driveway. Defendant raised concerns that paving the strip would, inter alia, cause water to drain onto his property, and the parties were unable to reach an agreement. Despite the lack of an agreement, plaintiffs went ahead and had the strip paved anyway. In response, defendant had the new asphalt removed the day after it was installed.
Plaintiffs thereafter commenced this action seeking, inter alia, money damages and a permanent injunction restraining defendant from interfering with future maintenance and repair of the easement. Following a bench trial, Supreme Court, inter alia, determined that the paving of the easement was necessary to facilitate plaintiffs’ use of the easement for its intended purposes and enjoined defendant from interfering with plaintiffs’ right to repair and maintain the easement. Defendant appeals, and we affirm.
We reject defendant's contention that the verdict is against the weight of the evidence. "[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses" ( Livingston v. State of New York , 129 A.D.3d 1660, 1660, 12 N.Y.S.3d 467 [4th Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5150696 [2015] ). Based on our review of the record, we conclude that a fair interpretation of the evidence supports the court's determination that plaintiffs’ right of ingress and egress over the easement to their driveway had been impaired, that plaintiffs had the right to reasonably repair the easement by paving the 200-square-foot portion of the easement area, that defendant interfered with plaintiffs’ exercise of that right, and that paving the easement would not create any new or additional burdens on defendant's property (see Lopez v. Adams , 69 A.D.3d 1162, 1163-1164, 895 N.Y.S.2d 532 [3d Dept. 2010] ; Ickes v. Buist , 68 A.D.3d 823, 824, 890 N.Y.S.2d 641 [2d Dept. 2009] ; Bilello v. Pacella , 223 A.D.2d 522, 522, 636 N.Y.S.2d 112 [2d Dept. 1996] ; cf. Boice v. Hirschbihl , 128 A.D.3d 1215, 1217-1218, 10 N.Y.S.3d 648 [3d Dept. 2015] ). In our view, the court struck the proper balance between plaintiffs’ need to remediate the easement and the burden that such remediation would impose on defendant (see Lopez , 69 A.D.3d at 1164, 895 N.Y.S.2d 532 ; see generally Tarsel v. Trombino , 167 A.D.3d 1462, 1463, 91 N.Y.S.3d 635 [4th Dept. 2018] ).
We also reject defendant's contention that the court accorded too much weight to the testimony of plaintiffs’ expert. The court's assessment of conflicting expert testimony at trial is entitled to deference and will not be disturbed where, as here, it is supported by the record (see Matter of State of New York v. Connor , 134 A.D.3d 1577, 1577-1578, 21 N.Y.S.3d 920 [4th Dept. 2015], lv denied 27 N.Y.3d 903, 2016 WL 1312793 [2016] ; Kirkpatrick v. Timber Log Homes , 190 A.D.2d 1072, 1072, 593 N.Y.S.2d 689 [4th Dept. 1993] ; see generally Doviak v. Finkelstein & Partners, LLP , 137 A.D.3d 843, 847, 27 N.Y.S.3d 164 [2d Dept. 2016] ).
Defendant contends that the court abused its discretion to the extent that it precluded his expert from observing the trial testimony of plaintiffs’ expert. We reject that contention inasmuch as defendant was provided with pretrial disclosure of that expert's calculations and did not otherwise demonstrate how he was prejudiced by the court's ruling (see generally People v. Todd , 306 A.D.2d 504, 504, 761 N.Y.S.2d 312 [2d Dept. 2003], lv denied 1 N.Y.3d 581, 775 N.Y.S.2d 797, 807 N.E.2d 910 [2003] ; People v. Leggett , 55 A.D.2d 990, 991, 391 N.Y.S.2d 195 [3d Dept. 1977] ; Jerome Prince, Richardson on Evidence § 6-203 [Farrell 11th ed 1995]).
Contrary to defendant's further contention, the comments and conduct of the court during trial, while at times invasive, did not demonstrate that the court was biased against defendant (see Carlson v. Porter [appeal No. 2], 53 A.D.3d 1129, 1132, 861 N.Y.S.2d 907 [4th Dept. 2008], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [2008] ). Recognizing that "[t]he trial court has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary" ( id. [internal quotation marks omitted]; see Messinger v. Mount Sinai Med. Ctr. , 15 A.D.3d 189, 189, 789 N.Y.S.2d 132 [1st Dept. 2005], lv dismissed 5 N.Y.3d 820, 803 N.Y.S.2d 27, 836 N.E.2d 1150 [2005] ; Campbell v. Rogers & Wells , 218 A.D.2d 576, 579, 631 N.Y.S.2d 6 [1st Dept. 1995] ), we conclude that the court did not abuse its discretion in directing a witness to answer questions or in expediting and clarifying the testimony of defendant's expert engineer (see Rivera v. Time Warner Cable of N.Y. City , 228 A.D.2d 661, 661, 644 N.Y.S.2d 969 [2d Dept. 1996] ). We nonetheless take this opportunity to remind the court that it must strictly avoid taking on "either the function or appearance of an advocate at trial" ( People v. Arnold , 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140 [2002] ; see Matter of Wright v. Perry , 169 A.D.3d 910, 913, 95 N.Y.S.3d 108 [2d Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2376035 [2019] ).
To the extent defendant contends that he was prejudiced by the court's alleged ex parte communication with one of the plaintiffs during a recess, we conclude that his challenge is unpreserved (see Matter of Diaz v. Kleinknecht Elec. , 123 A.D.3d 1304, 1306, 999 N.Y.S.2d 573 [3d Dept. 2014] ; see generally 22 NYCRR 100.3 [b] [6]). In any event, because the alleged ex parte communication related to neither the substance of that plaintiff's testimony nor the court's determination, we conclude that defendant suffered no prejudice as a result of the court's action (see Matter of Tamika B. v. Pamela C. , 187 A.D.3d 1332, 1334, 134 N.Y.S.3d 489 [3d Dept. 2020] ).
Finally, defendant's contention that the court erred in staying its determination of plaintiffs’ request for attorneys’ fees and punitive damages is not properly before us because it is not part of the judgment on appeal (see generally CPLR 5515 [1] ; Matter of National Fuel Gas Distrib. Corp. v. City of Jamestown , 108 A.D.3d 1045, 1046, 969 N.Y.S.2d 646 [4th Dept. 2013] ).