Opinion
No. 55
05-10-2016
FRIENDS OF THAYER LAKE LLC et al., Appellants, v. Phil BROWN, Respondent, and State of New York et al., Intervenors–Respondents, et al., Defendant.
McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Dennis J. Phillips of counsel), for appellants. Caffry & Flower, Glens Falls (John W. Caffry and Claudia K. Braymer of counsel), for Phil Brown, respondent. Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg, Barbara D. Underwood, Andrea Oser, Andrew B. Ayers and Philip M. Bein of counsel), for State of New York and another, respondents. Pacific Legal Foundation, Palm Beach Gardens, Florida (Mark Miller, of the Florida bar, admitted pro hac vice, of counsel), and New York Farm Bureau, Inc., Albany (Elizabeth C. Dribusch of counsel), for Pacific Legal Foundation and others, amici curiae. Diane Van Epps Finnegan, Manlius, for Adirondack Landowners Association, amicus curiae. Adirondack Mountain Club, Inc., Lake George (Neil F. Woodworth of counsel), and Schoeman Updike & Kaufman LLP, New York City (Charles B. Updike and Jeremy M. Weintraub of counsel), for Adirondack Mountain Club, Inc., and another, amici curiae. Hancock Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for Empire State Forest Products Association, amicus curiae.
McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Dennis J. Phillips of counsel), for appellants.
Caffry & Flower, Glens Falls (John W. Caffry and Claudia K. Braymer of counsel), for Phil Brown, respondent.
Eric T. Schneiderman, Attorney General, Albany (Brian D. Ginsberg, Barbara D. Underwood, Andrea Oser, Andrew B. Ayers and Philip M. Bein of counsel), for State of New York and another, respondents.
Pacific Legal Foundation, Palm Beach Gardens, Florida (Mark Miller, of the Florida bar, admitted pro hac vice, of counsel), and New York Farm Bureau, Inc., Albany (Elizabeth C. Dribusch of counsel), for Pacific Legal Foundation and others, amici curiae.
Diane Van Epps Finnegan, Manlius, for Adirondack Landowners Association, amicus curiae.
Adirondack Mountain Club, Inc., Lake George (Neil F. Woodworth of counsel), and Schoeman Updike & Kaufman LLP, New York City (Charles B. Updike and Jeremy M. Weintraub of counsel), for Adirondack Mountain Club, Inc., and another, amici curiae.
Hancock Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for Empire State Forest Products Association, amicus curiae.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be modified, without costs, by denying defendants' motions for summary judgment and, as so modified, affirmed.
Plaintiffs are the collective owners of real property in a remote area of the Adirondack
Mountains. The property is bounded on the north by the William C. Whitney Wilderness Area, which consists of more than 20,000 acres of state forest preserve land. The Wilderness Area was privately owned, at least during the twentieth century, until fully acquired by the State in 1998. Within the Wilderness Area, a network of lakes, ponds, streams, and canoe carry trails known as the Lila Traverse Section of the Whitney Loops permits canoe travel between two lakes on opposite sides of the Wilderness Area.
The parties' dispute concerns the Mud Pond Waterway, a two-mile-long system of ponds and streams within the Lila Traverse that crosses plaintiffs' property. Shortly after the Wilderness Area entered public ownership, defendant New York State Department of Environmental Conservation constructed a 0.8–mile carry trail in order to permit canoe travelers to avoid the Waterway and complete the Lila Traverse without entering plaintiffs' property. Defendants now assert that members of the public are not obligated to use the carry trail, as the Waterway is subject to a public right of navigation. We are asked to determine whether the Waterway is navigable-in-fact and therefore open to public use.
As a general principle, if a waterway is not navigable-in-fact, “it is the private property of the adjacent landowner” (Adirondack League Club v. Sierra Club, 92 N.Y.2d 591, 601, 684 N.Y.S.2d 168, 706 N.E.2d 1192 [1998] ). A waterway that is navigable-in-fact, however, “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” (id., citing Morgan v. King, 35 N.Y. 454 [1866] ; see Van Cortlandt v. New York Cent. R.R. Co., 265 N.Y. 249, 254–255, 192 N.E. 401 [1934] ; Fulton Light, Heat & Power Co. v. State of New York, 200 N.Y. 400, 412, 94 N.E. 199 [1911] ). To be subject to this public easement, a waterway must provide practical utility to the public as a means for transportation, whether for trade or travel (Adirondack League Club, 92 N.Y.2d at 603, 684 N.Y.S.2d 168, 706 N.E.2d 1192 ). In Adirondack League Club, though we did “not broaden the standard for navigability-in-fact,” we held that recreational use may properly be “part of the navigability analysis” (id. ).
Though the parties dispute the Waterway's navigability, they do not want a trial. Instead, the parties jointly requested a determination as a matter of law upon their respective motions for summary judgment, contending that the material facts are fully and accurately presented in the record and are not in significant dispute. Supreme Court expressed a clear reluctance to honor this request, noting its inclination to determine that sufficient issues of fact exist to preclude the issuance of summary judgment. The Appellate Division, while noting that determinations of navigability are “heavily dependent on factual evidence and assessments,” granted the parties' mutual request to resolve the matter as a question of law (Friends of Thayer Lake LLC v. Brown, 126 A.D.3d 22, 25, 1 N.Y.S.3d 504 [3d Dept.2015] ). Nonetheless, both lower courts granted the parties' request to resolve the dispute as a matter of law, concluding that parties in a civil dispute may “chart their own course in litigation” and may “agree upon the factual basis for the resolution of a legal controversy” (id., citing Matter of Kaczor v. Kaczor, 101 A.D.3d 1403, 1404–1405, 956 N.Y.S.2d 650 [3d Dept.2012] ).
Such freedom, however, must give way to certain practical restraints: A waterway's navigability is a highly fact-specific determination that cannot always be resolved as a matter of law (
Adirondack League Club, 92 N.Y.2d at 605, 684 N.Y.S.2d 168, 706 N.E.2d 1192 ). On a motion for summary judgment, the moving party 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 (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 [2015] ). Summary judgment is inappropriate in any case where there are material issues of fact in dispute or where more than one conclusion may be drawn from the established facts (Kriz v. Schum, 75 N.Y.2d 25, 33–34, 550 N.Y.S.2d 584, 549 N.E.2d 1155 [1989] ).
Notably, in lieu of a stipulated statement of facts, the parties submitted an expansive record containing, among other things, documents, maps, photographs, letters, articles, guidebooks, video footage, diaries, testimony, and affidavits. They now seek a determination “as a matter of law” based on the agreed-upon facts that may be gleaned therefrom. While in this proceeding, a stipulated statement of facts is not a prerequisite for the issuance of summary judgment, its absence is notable where, as here, the parties have amassed a voluminous and detailed record, and seek a legal resolution of an inherently fact-intensive determination.
On this record, we must decline the parties' invitation to award judgment as a matter of law. Contrary to their claim, the parties have presented conflicting or inconclusive evidence with regard to a number of material facts and the inferences they wish to be drawn from those facts. The record is not conclusive with regard to, for instance, the Waterway's historical and prospective commercial utility, the Waterway's historical accessibility to the public, the relative ease of passage by canoe, the volume of historical travel, and the volume of prospective commercial and recreational use. Collectively, these factual assessments present material considerations that, left unresolved, permit more than one conclusion to be drawn concerning the Waterway's practical utility (Adirondack League Club, 92 N.Y.2d at 605–607, 684 N.Y.S.2d 168, 706 N.E.2d 1192 ; see Morgan, 35 N.Y. at 459–460 ; People ex rel. Lehigh Val. Ry. Co. v. State Tax Commn., 247 N.Y. 9, 11–12, 159 N.E. 703 [1928] ; People ex rel. Erie R.R. Co. v. State Tax Commn., 266 App.Div. 452, 454, 43 N.Y.S.2d 189 [3d Dept.1943] ). As material questions of fact remain, neither party has demonstrated prima facie entitlement to summary judgment, and the competing evidence must be weighed and the credibility of the witnesses must be assessed by a factfinder (Adirondack League Club, 92 N.Y.2d at 600, 684 N.Y.S.2d 168, 706 N.E.2d 1192 ). These factual determinations and their relative weight—as well as the “ultimate conclusion” of navigability-in-fact—are for the trier of fact based on the evidence (Adirondack League Club, 92 N.Y.2d at 605, 684 N.Y.S.2d 168, 706 N.E.2d 1192 ). We therefore hold that sufficient issues of fact exist to preclude the issuance of summary judgment.
Chief Judge DiFIORE and Judges PIGOTT, RIVERA, ABDUS–SALAAM, STEIN, FAHEY and GARCIA, concur.
Order modified, without costs, by denying defendants' motions for summary judgment and, as so modified, affirmed, in a memorandum.