Opinion
2014-07-3
Joseph THIBODEAU et al., Respondents, v. Richard MARTIN et al., Defendants, and Jodi D. Aubin, Appellant.
Ianniello Anderson, P.C., Clifton Park (Matthew I. Mazur of counsel), for appellant. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (John H. Pennock Jr., Clifton Park, of counsel), for respondents.
Ianniello Anderson, P.C., Clifton Park (Matthew I. Mazur of counsel), for appellant. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (John H. Pennock Jr., Clifton Park, of counsel), for respondents.
Before: STEIN, J.P., McCARTHY, EGAN JR., LYNCH and CLARK, JJ.
McCARTHY, J.
Appeal from an order of the Supreme Court (Ferradino, J.), entered April 22, 2013 in Saratoga County, upon a decision of the court declaring the rights of the parties as to certain real property and permanently enjoining defendants' obstruction of a certain right-of-way.
The parties own neighboring parcels of property in the Town of Halfmoon, Saratoga County. Plaintiffs commenced this action seeking, among other things, a declaration that they held a right-of-way over an approximately 67–by–50–foot rectangular portion of defendants' real property (hereinafter the turnaround) and an order that defendants remove certain alleged obstructions from the turnaround. After a trial, Supreme Court found, among other things, that plaintiffs maintained a right-of-way over the turnaround and ordered that, as relevant here, defendants remove various obstructions to plaintiffs' use of the turnaround, including a gravel driveway.
Defendant Jodi D. Aubin (hereinafter defendant) and defendant Richard Martin appeal.
Defendant Agnes Martin died during the pendency of this action. Although there is no indication in the record that the action was stayed or that a personal representative was formally substituted for her ( see generallyCPLR 1015[a]; 1021), the action survives as to the other defendants because the three took title to the turnaround as tenants in common ( seeEPTL 6–2.2[a] ). Accordingly, the action “can proceed without a substitution with the death simply being noted on the record” ( Bova v. Vinciguerra, 139 A.D.2d 797, 799, 526 N.Y.S.2d 671 [1988];accord Adamec v. Mueller, 94 A.D.3d 1212, 1213 n. 2, 942 N.Y.S.2d 258 [2012],lv. denied20 N.Y.3d 856, 2013 WL 105330 [2013];seeCPLR 1015[b] ).
This Court thereafter granted plaintiffs' motion to dismiss Richard Martin's appeal as a result of his default. However, the undisputed record establishes that defendant and Richard Martin own the real property at issue as tenants in common ( see n. 1, supra ) and, therefore, any determination regarding the rights or obligations associated with such real property also affect him.
On appeal, defendant challenges only the portion of Supreme Court's order requiring defendants to remove the gravel driveway installed on the turnaround. “[W]here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” ( Lewis v. Young, 92 N.Y.2d 443, 449, 682 N.Y.S.2d 657, 705 N.E.2d 649 [1998];accord Sullivan v. Woods, 70 A.D.3d 1286, 1287, 895 N.Y.S.2d 578 [2010] ). Accordingly, “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, 92 N.Y.2d at 449, 682 N.Y.S.2d 657, 705 N.E.2d 649;accord Sambrook v. Sierocki, 53 A.D.3d 817, 818, 861 N.Y.S.2d 483 [2008] ).
Here, the deed establishing the right-of-way states that it is “for the purpose of ingress and egress to” plaintiffs' property. The uncontroverted evidence established that, while the turnaround was previously comprised of hard-packed dirt, defendant installed a gravel driveway on the turnaround. Plaintiffs did not submit any evidence establishing that the gravel driveway impeded their use of the turnaround. Although plaintiffs established that they had a right of passage for the purpose of ingress and egress, they failed to further establish that defendant's addition of a gravel driveway impaired that right to any extent. Accordingly, Supreme Court erred in ordering defendants to remove the gravel driveway ( see Sambrook v. Sierocki, 53 A.D.3d at 818, 861 N.Y.S.2d 483;Chekijian v. Mans, 34 A.D.3d 1029, 1032, 825 N.Y.S.2d 281 [2006],lv. denied8 N.Y.3d 806, 833 N.Y.S.2d 426, 865 N.E.2d 843 [2007];Mester v. Roman, 25 A.D.3d 907, 908, 809 N.Y.S.2d 226 [2006];compare Marek v. Woodcock, 277 A.D.2d 864, 865–866, 716 N.Y.S.2d 812 [2000],lv. dismissed96 N.Y.2d 792, 725 N.Y.S.2d 641, 749 N.E.2d 210 [2001] ).
ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as required defendants to remove the gravel driveway, and, as so modified, affirmed.