Robert J. Muller, J.

Unpublished Opinion

Law Offices of Newell & Klingebiel, Esqs., Glens Falls (David C. Klingebiel of counsel), for plaintiff.

Rowlands, Lebrou & Griesmer, PLLC, Saratoga Springs (Michael J. Catalfimo of counsel), for defendants, Greene, Goodspeed, Bearor and Clement.

Robert J. Muller, J.

Plaintiff Scott Marlow owns certain real property located at 23 Roy Road (also known as Roy's Way and Roys Way) in the Town of Argyle, Washington County. Defendants own surrounding properties, with Barry Greene and Karen Greene owning the property located at 19 Roy Road; Lawrence Goodspeed and Karen Goodspeed owning the property located at 17 Roy Road; Daniel Bearor and Deborah Bearor owning the property located at 15 Roy Road; James Horton and Mary Pat Horton owning the property located at 13 Roy Road; and Melissa Clement owning the property located at 7 Roy Road. These properties are on Summit Lake. Plaintiff resides at his property on a full-time basis, while defendants use their properties seasonally.

All parties access their properties using Roy Road, a private roadway established in a subdivision map filed by Rose Roy and Francis DeCamilla, the parties' grantors in common. There is no homeowners' association nor any agreement relative to the maintenance and repair of Roy Road. Only the Goodspeeds' deed references a right-of-way over Roy Road, but it appears undisputed that all parties have the right to use it. According to plaintiff, his property is bisected by Roy Road, "which runs in close proximity to [his] home on the North, and [his] garage on the South.

Plaintiff further alleges as follows:

"Roy Road is commonly used by third parties, at all hours of the day and night, who do not reside on Roy Road, including private automobiles, ATVs, UTVs, motorcycles, and other recreational vehicles.

"On numerous occasions, I have observed third parties, and some of the named [d]efendants, operating said vehicles while consuming alcoholic beverages and, upon information and belief, in a state of intoxication.

"[T]he usage of Roy Road by third parties not benefitted by the Right-of-Way creates a dangerous and hazardous condition in that said third parties drive through my property at excessive speeds, while consuming alcohol, upon information and belief while ability impaired, and create noise, dust, odors, debris, and damage to Roy Road....

"I have made numerous and repeated attempts to restrict the use of Roy Road to only those benefitted by the Right-of-Way. Said attempts include, but are not limited to: contacting the Washington County Sheriff's Office, posting of signs, speaking with third parties who are unlawfully using Roy Road, and speaking with the [d]efendants to restrict the usage of Roy Road to only those benefitted by same. None of these attempts have been unsuccessful [sic]."

Prior to this litigation plaintiff proposed to defendants that he relocate at his sole cost and expense the portion of Roy Road bisecting his property. According to plaintiff, defendants "objected to [the proposal] and did not offer any basis for said objection other than essentially stating that Roy Road is fine where it is and that [he] should not have a private driveway off Lohret Road."

Plaintiff thus commenced this action for a declaratory judgment that (1) he has the right to relocate at his sole cost and expense the portion of Roy Road bisecting his property, provided that such relocation does not impair defendants' right of access to the road; and (2) that upon completion of the relocation, defendants, their representatives, successors and assigns must use the relocated portion of Roy Road and are prohibited from traversing or otherwise accessing the portion of Roy Road bisecting plaintiff's property. Presently before the Court is plaintiff's motion by Order to Show Cause-filed simultaneously with the summons and complaint-for an Order permitting plaintiff to relocate Roy Road during the pendency of this action and, further, permitting him to block that portion of Roy Road currently running through his property upon completion of the relocation.

By cross motion, defendants contend that they are entitled to dismissal of the complaint as against them based upon plaintiff's failure to state a cause of action (see CPLR 3211 [7]).

When considering a motion to dismiss on these grounds, the Court" 'must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts alleged fit within any cognizable legal theory'" (Rodriguez v Jacoby & Meyers, LLP, 126 A.D.3d 1183, 1185 [2015], lv denied 25 N.Y.3d 112 [2015], quoting He v Realty USA, 121 A.D.3d 1336, 1339 [2014] [internal quotation marks and citation omitted]; see Torrance Constr., Inc. v Jaques, 127 A.D.3d 1261, 1263 [2015]; Snyder v Brown Chiari, LLP, 116 A.D.3d 1116, 1117 [2014]).

Initially the Court observes that Roy Road was created in the March 7, 1945 "Map of lands subdivided for Rose Roy and Francis DeCamilla" (hereinafter Subdivision Map). Significantly, this Subdivision Map establishes a fixed location for the road using a metes and bounds description. Only the Goodspeeds' chain of title includes an express grant with respect to the use of Roy Road, with their deed granting them

"[t]he right to use a roadway designated as Roy Road on a map entitled 'Map of Lands Subdivided for Rose Roy and Francis DeCamilla on Summit Lake in Central Part of Lot Number 28 Argyle Patent' by Leslie W. Coulter, March 7, 1945, which map was filed in the Washington County Clerk's Office on October 30, 1947, and indexed as 19B in Book 9 of Maps at Page 345c, said right including the right of the second parties, their representatives, assigns and heirs to cross and recross said road from either town road entrance shown on said map in personal vehicles, commercial vehicles or on foot, with the condition that this right to use said road shall be at the risk of the second parties and their representatives and successors, and that, it is not an exclusive right, but is subject to the rights of others who were grantees of Roy and DeCamilla or are successors to same, and who need the use of said road or right of way for access to their property."

"[I]t is well settled that 'express easements are defined by the intent, or object, of the parties'" (Estate Ct., LLC v Schnall, 49 A.D.3d 1076, 1077 [2008], quoting Lewis v Young, 92 N.Y.2d 443, 449 [1998]). That being said, "where 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 at 449; accord Estate Ct., LLC v Schnall, 49 A.D.3d at 1077). "Inasmuch as 'enjoyment of an undefined right of ingress and egress over the land of another does not require any fixed occupancy of the landowner's premises,' a servient landowner may, under certain circumstances, unilaterally relocate an undefined right of way that has been granted to the easement holder" (Estate Ct., LLC v Schnall, 49 A.D.3d at 1077, quoting Lewis v Young, 92 N.Y.2d at 449; see Chekijian v Mans, 34 A.D.3d 1029, 1031 [2006], lv denied 8 N.Y.3d 806 [2007]; Green v Blum, 13 A.D.3d 1037, 1037-1038 [2004]). By contrast, "'[o]nce an easement is definitively located, by grant or by use, its location cannot be changed by either party unilaterally'" (Estate Ct., LLC v Schnall, 49 A.D.3d at 1077, quoting Clayton v Whitton, 233 A.D.2d 828, 829 [1996]; see Sullivan v Woods, 70 A.D.3d 1286, 1287 [2010]; Marsh v Hogan, 56 A.D.3d 1090, 1092 [2008]).

Defendants contend-and plaintiff concedes-that all "[d]efendants have an implied easement for the use of Roy Road to access their properties from the public road." In this regard, "it is well established that when property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant" (Bogan v Town of Mt. Pleasant, 278 A.D.2d 264, 264-265 [2000]) and, here, the original conveyances of defendants' respective properties referenced the subdivision map.

Plaintiff also concedes "that Roy Road has a metes and bounds description as set forth on the... Subdivision Map," but contends that "[a]s Roy Road currently exists,... and as used by [him] and [d]efendants, and their predecessor[s] in title, it is not in accordance with said metes and bounds description." Plaintiff further contends that-because Roy Road is not in its original location-it now constitutes an undefined right of way subject to unilateral relocation.

While this argument is inventive it flies in the face of controlling case law: "[U]nilateral relocation is not permitted where there is 'an indication that the parties intended to permanently fix the easement's location... '" (Rosen v Mosby, 148 A.D.3d 1228, 1231 [2017], quoting MacKinnon v Croyle, 72 A.D.3d 1356, 1357 [2010]; see Estate Ct., LLC v Schnall, 49 A.D.3d at 1077). Here, there is clearly an indication that the original grantors intended to permanently fix the easement's location-notwithstanding that the location of the easement has perhaps migrated over the years. Although plaintiff argues for an expansion of Lewis v. Young (supra) to authorize a unilateral relocation it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals.

Therefore, having considered NYSCEF document Nos. 1 through 7, 11 through 20, 25 through 31, and virtual oral argument having been heard on July 15, 2022, with David C. Klingebiel, Esq. appearing on behalf of plaintiff and Michael J. Catalfimo, Esq. appearing on behalf of defendants, Greene, Goodspeed, Bearor, and Clement, and affording the pleadings a liberal construction and accepting the facts alleged as true, plaintiff has failed to state a cause of action and defendants' pre-answer cross motion to dismiss the complaint as against them is granted. Plaintiff's motion for a preliminary injunction is necessarily denied.

The original of this Decision and Order has been e-filed by the Court. Counsel for defendants is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.

It is SO ORDERED.