ESSEKS, HEFTER, ANGEL, DI TALIA & PASCA Attorney for Plaintiffs 108 East Main Street Riverhead, New York 11901 TWOMEY, LATHAM, SHEA, KELLEY et al. Attorney for Defendant/Third-Party Plaintiff David Trust 33 West Second Street Riverhead, New York 11901 MCNULTY-SPEISS, P.C. Attorney for Additional Defendants Alfred Shuman & Stephanie Shuman 214 Roanoke Avenue Riverhead, New York 11901 MATTHEWS, KIRST & COOLEY, PLLC Attorney for Additional Defendants Calista Washburn & Lalitte Smith 241 Pantigo Road East Hampton, New York 11937 ROBERT KOUFFMAN, ESQ. Attorney for Additional Defendants Joseph Magliocco & Allison Magliocco 2411 Main Street, 2nd Floor Bridgehampton, New York 11932 FOX ROTHSCHILD, LLP Attorney for Third-Party Defendants 100 Park Avenue, 16th Floor New York, New York 10017
ESSEKS, HEFTER, ANGEL, DI TALIA & PASCA Attorney for Plaintiffs 108 East Main Street Riverhead, New York 11901 TWOMEY, LATHAM, SHEA, KELLEY et al. Attorney for Defendant/Third-Party Plaintiff David Trust 33 West Second Street Riverhead, New York 11901 MCNULTY-SPEISS, P.C. Attorney for Additional Defendants Alfred Shuman & Stephanie Shuman 214 Roanoke Avenue Riverhead, New York 11901 MATTHEWS, KIRST & COOLEY, PLLC Attorney for Additional Defendants Calista Washburn & Lalitte Smith 241 Pantigo Road East Hampton, New York 11937 ROBERT KOUFFMAN, ESQ. Attorney for Additional Defendants Joseph Magliocco & Allison Magliocco 2411 Main Street, 2nd Floor Bridgehampton, New York 11932 FOX ROTHSCHILD, LLP Attorney for Third-Party Defendants 100 Park Avenue, 16th Floor New York, New York 10017 Vincent J. Martorana, J.
Upon the following papers numbered 1 to 287 read on these motions for summary judgment, etc.: Notice of Motion/ Order to Show Cause and supporting papers 1 - 95; 96 - 131; 132 - 173 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 174 - 248; 249 - 259; 260 - 271; 272 - 277 ; Replying Affidavits and supporting papers 278 - 285; 286 - 287; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion by defendant/third-party plaintiff for an order granting summary judgment in his favor on the complaint and on the cross claims interposed against him is granted to the extent set forth herein, and is otherwise denied; and it is
ORDERED that the cross motion by plaintiffs for an order granting summary judgment in their favor on the complaint is granted to the extent set forth herein, and is otherwise denied; and it is further
ORDERED that the cross motion by third-party defendants for, inter alia, an order granting summary judgment in their favor on the third-party complaint, canceling the notices of pendency filed against their properties, and awarding them costs and expenses is denied.
Plaintiffs are the owners of residential properties abutting a private road in the Village of East Hampton known as Windmill Lane, which runs perpendicular to Further Lane from its southern boundary and terminates near the Atlantic Ocean. They commenced this action, pursuant to article 15 of the Real Property Actions and Proceedings Law, for a judgment declaring that each of their properties is benefitted by a five-foot-wide foot pedestrian easement that passes over the property known as 33 Windmill Lane and provides access to the beach and the Atlantic Ocean. More particularly, by their first through fifth causes of action, plaintiffs seek determinations that each of their respective properties on Windmill Lane are "benefitted by a prescriptive easement for access by foot from the end of Windmill Lane to the Atlantic Ocean beach along the westerly lines" of the properties known as 27 Windmill Lane and 33 Windmill Lane. By their sixth cause of action, plaintiffs seek a determination that the properties known as 3 Windmill Lane, 7 Windmill Lane, and 11 Windmill Lane each have an express easement to access the subject pedestrian path. By their seventh cause of action, plaintiffs seek a judgment determining that their properties are benefitted by an easement over the easterly 25 feet of Windmill Lane running across the property known as 27 Windmill Lane. The David Andrew Trust Revocable Trust holds title to the property known as 27 Windmill Lane (also referred to as the DAT Trust property), and additional defendants Alfred Shuman and Stephanie Shuman hold title to the property known as 33 Windmill Lane (also referred to as the Shuman property), both of which are located on the east side of Windmill Lane. Defendant/third-party plaintiff David Trust is the trustee of the David Andrew Trust Revocable Trust, which took title to 27 Windmill Lane in 1999. In addition, by their eighth and ninth causes of action, plaintiffs seek permanent injunctions prohibiting Trust from interfering with their use of Windmill Lane and directing the removal of the obstructions in the subject easements erected on the DAT Trust property.
Furthermore, the Shuman defendants interposed a cross claim against Trust for an injunction directing him to remove all structures that he erected within the Windmill Lane easement and prohibiting him from interfering with their property rights of ingress and egress. They also brought a cross claim seeking a declaration that Trust has no right to use the 5-foot-wide pedestrian easement that crosses over their property and leads to the beach. Trust served an answer to the cross claims denying nearly all of the Shuman defendants' allegations.
Trust, individually and as trustee of the David Andrew Trust Revocable Trust, then commenced a third-party action for declaratory and injunctive relief against the owners of the properties known as 26 Windmill Lane and 32 Windmill Lane. Situated directly across the street from the DAT Trust property, on the western side of Windmill Lane, the property known as 26 Windmill Lane currently is owned by third-party defendant Evans Investment LLC. Abutting 26 Windmill Lane on its southern boundary, the property known as 32 Windmill Lane is owned by third-party defendants the James H. Evans 2001 Revocable Trust and the James H. Evans 2011 Family Trust own 32 Windmill Lane. The amended third-party complaint alleges, in relevant part, that Windmill Lane is situated within a 50-foot-wide easement for ingress and egress running from the southern boundary of Further Lane to the properties known as 27 Windmill Lane and 32 Windmill Lane; that a strip of property, which measures 25 feet wide and 154 feet long, running along the eastern boundary of the property known as 26 Windmill Lane, and an abutting strip of property, which measures 25 feet wide and 32.69 feet long, running along the boundary of 32 Windmill Lane, are burdened by such easement; and that third-party defendants have prevented the use of the easement insofar as it crosses their properties, both for providing access to the southernmost parcels of land and for providing pedestrian access to the beach and Atlantic Ocean, by installing boulders, grass and other landscaping features within the westerly 25-foot-wide portion of the easement area.
The first cause of action of the third-party complaint seeks a declaration that Trust and the David Andrew Trust Revocable Trust have rights "to and over the 25 feet of Windmill Lane for a length of 186.69 feet on the third-party defendants' properties and determining that Windmill Lane should burden not only the third-party plaintiffs' property but the third-party defendants' properties equally and that the share the burden of said roadway in accordance with the deeds in their respective chains of title." The second cause of action seeks a permanent injunction enjoining third-party defendants from "obstructing use and paving of the westerly 25 feet of Windmill Lane as it traverses their properties." A third cause of action states only that third-party defendants are necessary parties to the underlying action. Third-party defendants interposed a counterclaim for a judgment directing the Trust defendants to remove structures erected in the Windmill Lane easement area and enjoining them from interfering with their use of Windmill Lane.
Trust now moves for summary judgment dismissing the complaint and the cross claims against him, arguing that plaintiffs do not have deeded rights to use the pedestrian easement; that plaintiffs' past use of such easement was merely a neighborly accommodation and did not create a prescriptive easement; and that the obstructions erected within the easement areas prior to the commencement of this action have been removed. In addition, Trust argues the action should be dismissed on the ground that plaintiffs have failed to name necessary parties to this action, namely, R.E. Dowling Realty Corporation, Paul Sheerer, Barbara Sheerer, and Joel Stern. Included in Trust's submissions in support of the motion are the transcripts of plaintiffs' deposition testimony, the transcript of the deposition testimony of Alfred Shuman, copies of various deeds and surveys, an unsworn title report prepared by Fidelity National Title, and an affidavit of Alexandra Bossung, a title examiner. The court notes the title report prepared by Fidelity National Title was not in admissible form and was not considered in the determination of the motion (see 1212 Ocean Ave . Hous. Dev. Corp. v Brunatti , 50 AD3d 1110, 857 NYS2d 649 [2d Dept 2008]; see generally Friends of Animals v Associated Fur Mfrs ., 46 NY2d 1065, 416 NYS2d 790 ).
Plaintiffs oppose Trust's motion and cross-move for an order granting summary judgment in their favor on the complaint. Plaintiffs assert, among other things, that affidavits and deposition transcripts submitted in support of their motion establish a prima facie case that each has acquired a prescriptive easement over the 5-foot-wide right of way that runs from the southern portion of the DAT Trust property and across the Shuman property which benefits their respective property. They argue that a 1949 deed issued by Russell Hopkinson to R.E. Dowling Realty Corporation created a 50-foot-wide easement (the Windmill Lane easement) for ingress and egress, which terminates by the properties known as 27 Windmill Lane and 32 Windmill Lane and benefits all of the properties abutting such easement. They further argue that Trust, by putting stones on the roadway "to pretend that it stops at his property" and by installing a gate at the boundary with the Shuman property, obstructed both their deeded rights to access the southernmost portion of the Windmill Lane easement and their prescriptive rights to use the pedestrian right of way. In support of their motion, plaintiffs submit, among other things, copies of various deeds, their own affidavits and affidavits of nonparty witnesses, and an affidavit of Lance Pomerantz, an attorney allegedly engaged in the practice of examining land titles.
The Shumans also oppose Trust's motion and submit, among other things, copies of the deeds to their property and the DAT Trust property, and an affidavit of Alfred Shuman, dated June 22, 2017. Alfred Shuman states in his affidavit that sometime in 2010, David Trust "began objecting to our neighbors' use of our easement on Windmill Lane and the eleven foot wide private roadway to access the beach path which is located on our property . . . he caused certain structures to be erected within the boundaries of Windmill Lane and the private roadway . . . including a gate and two (2) stone walls or gabions." He further alleges that the gate and one stone wall later were removed by Trust, and that the remaining stone wall makes access to 33 Windmill Lane "more difficult."
Conversely, Allison Magliocco and Joseph Magliocco oppose plaintiffs' motion and support Trust's motion, arguing, in part, that as the deeds conveying title to their property, known as 19 Windmill Lane, and to the properties known as 15 Windmill Lane and 23 Windmill Lane contain language conveying a right of way over a 5-foot-wide strip of land running along the western border of the DAT Trust property and the Shuman property, and such language is not contained in plaintiffs' deeds, it is "likely" that the predecessor in title only intended that the owners of such properties have a right to use the footpath to access the beach. The Maglioccos further argue a determination that plaintiffs have easements by prescription "will result in a windfall to plaintiffs and rob [them] of their valuable deeded beach access rights by essentially effectuating a private taking" without compensating them for the loss of such rights. Annexed to their papers are copies of deeds for the property known as 11 Windmill Lane.
Additionally, third-party defendants cross-move for summary judgment dismissing the third-party complaint. They also seek a judgment declaring that Trust has no rights in the unpaved portion of the Windmill Lane easement that crosses their properties, canceling the notices of pendency filed against their properties, and awarding them costs and expenses under CPLR 6514 (c). Third-party defendants allege Trust has installed a gabion filed with stones, a fence, and gate, as well as re-surfaced a portion of Windmill Lane in front of the DAT Trust property with red gravel and installed a metal edging in the roadway, presumably to mark the western boundary of such property within the Windmill Lane easement. They assert that the wall, the fence, the gate, and the metal edging interfere with their right to use the Windmill Lane easement for ingress and egress, as well as create a safety hazard for drivers exiting their respective properties. They further allege that the grass, landscaping features, and portions of the driveways for 26 Windmill Lane and 32 Windmill Lane located within the western portion of the Windmill Lane easement, which Trust alleges prevent his use of the entire 50-foot width of the Windmill Lane, have been present since 1986, and that the only demand they received to remove such features was made by David Trust in 2013.
Third-party defendants argue, in part, that the third-party complaint should be dismissed, as Trust admits the paved portion of Windmill Lane is sufficient to allow ingress to and egress from the DAT Trust property, and there is no basis for the Trust's claim that the burden of the improved portion of the Windmill Lane easement should be borne equally by the DAT Trust property and third-party defendants' properties. Third-party defendants' submissions in support of their cross motion include copies of the third-party pleadings, affidavits of Thomas Jepperson and James H. Evans, a survey of the DAT Trust property prepared in 1999, a survey of the Shuman property updated in 2013, and numerous photographs of Windmill Lane taken in 2014.
Initially, the evidence in the record shows the Windmill Lane easement was created by a common grantor, Russell Hopkinson, by way of a deed given to R.E. Dowling Realty Corporation in November 1949. The 1949 Hopkinson deed to R.E. Dowling Realty transferred the eastern half of a 20-acre parcel of property owned by Hopkinson running south from Further Lane to the beach at the Atlantic Ocean, which he had acquired by deeds from John W.Y. Martin and Samuel Klump Martin III, both dated February 1944. The 1949 Hopkinson deed describes the property as comprising an area of 12.27 acres, with the northwest corner marked by the intersection of the southern side of Further Lane and the center line of a private road measuring 50-feet wide. The 1949 deed conveys "a perpetual right-of-way over the westerly twenty-five (25) feet of the fifty (50) foot private road hereinbefore referred to, for ingress to and egress from said premises from and to Further Lane," as well as reserved to Hopkinson "a permanent right-of-way over the easterly twenty-five (25) feet of said fifty (50) foot private road for ingress to and egress from other premises of [Hopkinson] on the west, from and to Further Lane." Moreover, the 1949 deed states the private road "shall be and remain a common driveway for the benefit of the owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of [Hopkinson] on the west, or any part thereof," and that the transfer of title includes all of Hopkinson's "right, title and interest, if any, in and to any land adjacent to the above described premises to the south thereof, to the mean high water line of the Atlantic Ocean."
The documentary evidence further shows that 12 parcels of residential property abut the Windmill Lane easement, and that 14 parcels presently use the easement for ingress and egress. The property owned by plaintiffs Orlando Sacasa and Jane Sacasa, known as 3 Windmill Lane, the property owned by plaintiffs Evan Sheinberg and Abigail McKenna, known as 7 Windmill Lane, the property owned by plaintiffs Jack Nusbaum and Nora Wallace, known as 11 Windmill Lane, and the property owned by Lalitte Smith and the Smith Family Qualified Personal Residence Trust #1, known as 15 Windmill Lane (also referred to as the Smith property), are situated on the eastern side of Windmill Lane, north of the DAT Trust property. The property owned by plaintiff Jean Clarke, known as 12 Windmill Lane, is located on the west side of Windmill Lane, north of third-party defendants' properties, as is the property owned by the Joline Stemerman 2012 Gift Trust and the David Stemerman 2012 Family Trust (collectively referred to as the Stemerman trusts), known as 16 Windmill Lane. The DAT Trust property is bounded on the north by the property known as 19 Windmill Lane, owned by additional defendants Allison Magliocco and Joseph Magliocco, on the east by the property known as 23 Windmill Lane, owned by the Calista Washburn Revocable Trust dated May 7, 2009 and the Ira H. Washburn, Jr. Revocable Trust dated May 7, 2009 (also referred to as the Washburn Trust property), and on the south by the Shuman property. Fronting the Atlantic Ocean, the Shuman property is just south of the Windmill Lane easement. The western portion of its northern boundary abuts the DAT Trust property, and the eastern portion abuts the Washburn Trust property. The Shuman property and the Washburn Trust property, a flag lot situated east of the DAT Trust property, can only be accessed using the Windmill Lane easement.
Significantly, only a portion of the Windmill Lane easement is paved. Certified surveys included with the motion papers show that the paved portion of the roadway shifts east as it approaches the southern end of Windmill Lane, and that the entire paved portion at the end of the road is within the easternmost section of the Windmill Lane easement area. Neither the Shumans, who have owned their property since 2001, nor Trust dispute plaintiffs' allegation that the beach access path at issue measures five feet in width.
The evidence in the record shows that the R.E. Dowling Corporation transferred the parcels of land known as 15 Windmill Lane and 19 Windmill Lane, both on the eastern side of the road, to Robert W. Dowling in 1966. In addition to language referring to the right to use the Windmill Lane easement for ingress to and egress from Further Lane, the 1966 deeds transferring ownership to Robert Dowling state title to such properties includes a 5-foot-wide right of way "for ingress to and egress from the southerly 50-foot end of Windmill Lane and the Atlantic Ocean beach by foot only, including the use of the most westerly stairway, all running along the most westerly boundary" of the land owned at the time by Carolyn Storrs Spofford, i.e., the 27 Windmill Lane and the 33 Windmill Lane properties. The 1966 deeds to Robert W. Dowling also state "an identical easement exists in favor of Calista Washburn." The easement in favor of the property owned at that time by Calista Washburn was created by a 1961 deed from R.E. Dowling Corporation to Calista Washburn, which states that included in the transfer of ownership is a "perpetual right of way, for use in common with others, over the full course of the 50 foot private road known as Windmill Lane, for ingress and egress to and from said premises and Further Lane," as well as a "perpetual right of way for ingress to and egress from the southerly 50 foot end of Windmill Lane and the Atlantic Ocean beach, on foot only, over and along strip 5 feet in width, including the use of the most westerly stairway, all running along the western boundary of other premises of the grantor herein from said southerly end of Windmill Lane." It appears that the property transferred to Calista Washburn in 1961 is the property herein referred to as the Washburn Trust property.
A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp ., 68 NY2d 320, 508 NYS2d 923 ; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 ). The failure to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ . Med. Ctr., 64 NY2d 851, 487 NYS2d 316 ). If such a showing is made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; mere conclusions and unsubstantiated allegations are insufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp ., 68 NY2d 320, 508 NYS2d 923; Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595; Perez v Grace Episcopal Church , 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]).
Initially, the branch of Trust's motion for summary judgment dismissing the complaint based on plaintiffs' failure to join as necessary parties Joel Stern, Paul Sheerer, Barbara Sheerer, and R.E. Dowling Realty Corporation is denied. CPLR 1001 (a) defines necessary parties as "[p]ersons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action." "When a person who should be joined under [CPLR 1001 (a)] has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned" (CPLR 1001 [b]). While a property owner is typically a necessary party in an action to determine claims adverse to its ownership (see Sorbello v Birchez Assoc., 61 AD3d 1225, 876 NYS2d 789 [3d Dept 2009]; Dunkin Donuts of NY , Inc. v Mid-Valley Oil Co., Inc., 14 AD3d 590, 789 NYS2d 204 [2d Dept 2005]; see also RPAPL 1511 ), and a court "may always consider whether there has been a failure to join a necessary party" ( City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 475, 423 NYS2d 651, 654 ; accord Censi v Cove Landings , 65 AD3d 1066, 885 NYS2d 359 [2d Dept 2009]), plaintiff failed to show the Article 15 claims asserted in this action may adversely affect the real property interests of Stern or the Sheerers, the alleged owners of parcels of land on the western side of Windmill Lane (see Cannon v Sikora , 142 AD2d 662, 531 NYS2d 99 [2d Dept 1988]). Plaintiff also failed to demonstrate the continued existence of R.E. Dowling Realty Corporation.
As to the claims under article 15 of the Real Property Proceedings and Action Law, "[a]n easement is not a personal right of a landowner but an appurtenance to the land benefitted by it (the dominant estate). It is inseparable from the land and a grant of the land carries with it the grant of the easement" ( Will v Gates , 89 NY2d 778, 783, 658 NYS2d 900 ). It is not just a personal privilege to use another's land, but an actual interest in the land ( Sutera v Go Jokir , Inc., 86 F3d 298, 301 [2d Cir 1996]). "An easement is a permanent right conferred by grant or prescription, authorizing one landowner to do or maintain something on the adjoining land of another, which, although a benefit to the land of the former, and a burden upon the land of the latter, is not inconsistent with general ownership" ( Trustees of Town of Southampton v Jessup , 162 NY 122, 126, 56 NE 538 ). Thus, a grantee of land takes title subject to any duly recorded easements that were granted by his or her predecessors in title (see Corrarino v Byrnes , 43 AD3d 421, 841 NYS2d 122 [2d Dept 2007]; Pomygalski v Eagle Lake Farms , 192 AD2d 810, 596 NYS2d 535 [3d Dept], lv denied 82 NY2d 656, 602 NYS2d 805 ), as well as to any unrecorded easements of which he or she has actual or constructive notice ( Stasack v Dooley , 292 AD2d 698, 700, 739 NYS2d 478 [3d Dept 2002]; Breakers Motel v Sunbeach Montauk Two , 224 AD2d 473, 474, 638 NYS2d 135 [2d Dept], lv dismissed 88 NY2d 1016, 649 NYS2d 382 , lv denied 90 NY2d 810, 665 NYS2d 401 ). A person who purchases a servient estate with actual or constructive notice of an easement is estopped from denying the existence of such easement ( Strnad v Brudnicki , 200 AD2d 735, 737, 606 NYS2d 913 [2d Dept 1994]; see Zunno v Kiernan , 170 AD2d 795, 565 NYS2d 900 [3d Dept 1991]), and may not unreasonably interfere with the rights of the owner of the dominant estate to use and enjoy the easement ( B .J. 96 Corp. v Mester , 262 AD2d 732, 733, 692 NYS2d 185 [3d Dept 1999]; Green v Mann , 237 AD2d 566, 567-568, 655 NYS2d 627 [2d Dept 1997]; Wilson v Palmer , 229 AD2d 647, 647, 644 NYS2d 872 [3d Dept 1996]; see Herman v Roberts , 119 NY 37, 23 NE 442 ; Scappa v Herzig , 92 AD3d 751, 938 NYS2d 346 [2d Dept 2012]; Rozek v Kuplins , 266 AD2d 445, 698 NYS2d 866 [2d Dept 1999], lv denied 95 NY2d 754, 711 NYS2d 156 ). Further, "long-time use, without objection of the servient tenement, establishes the location of the easement" ( Green v Mann , 237 AD2d 566, 567, 655 NYS2d 627).
As an easement derives from use, its owner gains merely the limited use or enjoyment of the servient land ( Di Leo v Pecksto Holding Corp ., 304 NY 505, 511, 109 NE2d 600 ). An easement appurtenant occurs when the easement is conveyed in a writing, subscribed by the creator of the easement, which burdens the servient estate for the benefit of the dominant estate ( Djoganopoulos v Polkes , 95 AD3d 933, 935, 944 NYS2d 217 [2d Dept 2012]; Bogart v Roven , 8 AD3d 600, 601, 780 NYS2d 355 [2d Dept 2004]; Green v Mann , 237 AD2d 566, 566-567, 655 NYS2d 627, 628). When the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses, even if there is no specific mention of it in the deed (see Djoganopoulos v Polkes , 95 AD3d 933, 944 NYS2d 217; Green v Mann , 237 AD2d 566, 655 NYS2d 627; Strnad v Brudnicki , 200 AD2d 735, 606 NYS2d 913). Once created, an easement appurtenant by grant passes with the land unless extinguished by abandonment, conveyance, condemnation or adverse possession ( Gerbig v Zumpano , 7 NY2d 327, 330, 197 NYS2d 161, 163 ; see Corrarino v Byrnes , 43 AD3d 421, 841 NYS2d 122; Spier v Horowitz , 16 AD3d 400, 791 NYS2d 156 [2d Dept 2005]; Green v Mann , 237 AD2d 566, 567, 655 NYS2d 627). It is not extinguished by subdivision of the land to which it applies so long as no additional burden is imposed upon the servient estate ( Djoganopoulos v Polkes , 95 AD3d 933, 935, 944 NYS2d 217).
An easement by prescription is acquired by the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period of ten years (see Masucci v DeLuca , 97 AD3d 550, 948 NYS2d 349 [2d Dept 2012]; 315 Main St. Poughkeepsie , LLC v WA 319 Main , LLC , 62 AD3d 690, 878 NYS2d 193 [2d Dept 2009]). "The right acquired by prescription is commensurate with the right enjoyed. The extent of the enjoyment measures the extent of the right" ( Prentice v Geiger , 74 NY 341, 347 ; see Vitiello v Merwin , 87 AD3d 632, 928 NYS2d 581 [2d Dept 2011]; Zutt v State of New York , 50 AD3d 1133, 856 NYS2d 245 [2d Dept 2008]; Thury v Britannia Acquisition Corp., 19 AD3d 586, 797 NYS2d 132 [2d Dept 2005]). As with adverse possession, a party claiming an easement by prescription bears the burden of proving the existence of such an easement through clear and convincing evidence (see Ciringione v Ryan , 162 AD3d 634, 78 NYS3d 421 [2d Dept 2018]; CSC Acquisition-NY , Inc. v 404 Country Road 39A , Inc., 96 AD3d 986, 947 NYS2d 556 [2d Dept 2012]). Generally, clear and convincing evidence of an open, notorious, continuous, and uninterrupted use of an easement creates a presumption that the use was hostile, and shifts the burden to the owner of the servient estate to demonstrate that the use was permissive (see Ciringione v Ryan , 162 AD3d 634,78 NYS3d 421; Colin Realty Co. v Manhasset Pizza , LLC , 137 AD3d 838, 26 NYS3d 606 [2d Dept 2016]; 315 Main St. Poughkeepsie , LLC v WA 319 Main , LLC , 62 AD3d 690, 878 NYS2d 193; Duckworth v Ning Fun Chiu , 33 AD3d 583, 822 NYS2d 147 [2d Dept 2006]; Hryckowian v Pulaski , 249 AD2d 511, 671 NYS2d 346 [2d Dept 1998]; see also Di Leo v Pecksto Holding Corp ., 304 NY 505, 109 NE2d 600). Further, a party seeking a right of use by prescription need not establish that such use was exclusive (see Almeida v Wells , 74 AD3d 1256, 904 NYS2d 736 [2d Dept 2010]), and may tack the use of the easement by his or her predecessors in title to establish the requisite prescriptive period (see Vitiello v Merwin , 87 AD3d 632, 928 NYS2d 581; Brocco v Mileo , 144 AD2d 200, 535 NYS2d 125 [3d Dept 1988]; Mihaly v Mahoney , 126 AD2d 791, 510 NYS2d 826 [3d Dept 1987]).
Moreover, where the intention of the grantor is to afford only a right of way, "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 NY2d 443, 449, 682 NYS2d 657 ). Thus, an owner of land that is burdened by an 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 NY2d 443, 449, 682 NYS2d 657; see Matter of Goldberg v Zoning Bd . of Appeals of City of Long Beach , 79 AD3d 874, 912 NYS2d 668 [2d Dept 2010]).
Plaintiffs Sacasa, Clarke, Sheinberg, and McKenna established a prima facie case that they each have a prescriptive easement over the 5-foot-wide path beginning on the southwest portion of the property known as 27 Windmill Lane, which runs along the western boundary of such property and the property known as 33 Windmill Lane, with clear and convincing proof of their adverse, open, notorious and continuous use of such properties for 10 years or more to access, by foot, the Atlantic Ocean beach from Windmill Lane (see Auswin Realty Corp . v Klondike Ventures , Inc., 163 AD3d 1107, __ NYS3d __ [3d Dept 2018]; Ciringione v Ryan , 162 AD3d 634, 78 NYS3d 421; Miller v Rau , 193 AD2d 868, 597 NYS2d 532 [3d Dept 1993]; Thury v Britannia Acquisition Corp., 292 AD2d 373, 738 NYS2d 82). More specifically, the affidavit of Jane Sacasa, who, with her husband, Orlando Sacasa, acquired title to 3 Windmill Lane in 1991, states that she lived at such property as a part-time resident from 1991 through 2016, and that she and her brothers owned the property known as 7 Windmill Lane from 2001 to 2009, when it was sold to Evan Sheinburg and Abigail McKenna. She avers, in part, that she currently lives full time at the property known as 3 Windmill Lane, and lived "several weeks a year" with her mother in the residence at 7 Windmill Lane "beginning in 1973," and that "[f]or as long as I have lived on Windmill Lane, I continuously and openly have used the five-foot-wide path at the southern terminus of Windmill Lane to reach the Atlantic Ocean beach," walking on the foot path that leads across the DAT Trust property and the Shuman property, to a wooden staircase on the Shuman property that leads to the beach. She further alleges that since 1991, she and her husband have contributed to the cost of maintaining Windmill Lane "all the way to the beginning of the beach path," that she has "contributed to keeping the staircase free of weeds," as did her mother, Suzanne McFarlane, and that at no time did she request permission of the owners of the property known as 33 Windmill Lane to "walk over their property to clip weeds growing under the risers of the staircase." Both Jane and Orlando Sacasa testified at pretrial depositions that they have used the path to gain access to the Atlantic Beach for more than 50 years; that they continued to regularly use such path during the summer months after they purchased their property; that Trust observed them crossing over his property and never objected to such use; and that they regularly observed the other plaintiffs use the beach path over the years. They also testified that they contributed to the cost for resurfacing Windmill Lane, which originally was comprised of oil and sand, and then, approximately 12 years ago, was paved with asphalt.
The evidence also shows that Clarke, who lived on Windmill Lane with her parents since her childhood and has owned the property known as 12 Windmill Lane since 1979, used the path during the summer months openly, visibly, continuously and undisputed for decades. Clarke testified that she contributed to the cost of maintaining the private road, and that she never spoke with either the Shumans or Trust.
Moreover, the affidavits submitted in support of plaintiffs' motion demonstrate that Sheinberg and McKenna, who acquired 7 Windmill Lane in 2009, and their predecessors in interest, namely Suzanne McFarlane, John Shanholt, and Peter Shanholt, openly, continuously and notoriously used the path during the summer season for more than 10 years (see Vitiello v Merwin , 87 AD3d 632, 928 NYS2d 581; Brocco v Mileo , 144 AD2d 200, 535 NYS2d 125). The affidavits of McFarlane, John Shanholt, and Peter Shanholt state, in part, that no one gave them permission to use the pedestrian easement, that they believed they had a right to do so by virtue of their ownership of property on Windmill Lane, and that they intended to convey such easement when they transferred their interests in 3 Windmill Lane and 7 Windmill Lane. In addition, the Sacasas, Sheinberg, McKenna, and Clarke testified that they did not have a friendly relationship with either David Trust or the Shumans, or with the previous owners of the DAT Trust property or the Shuman property. The Sacasas, Sheinberg, and McKenna further testified that they first discussed the issue of the pedestrian right of way with the Shumans sometime in 2010, after Trust, seeking to obstruct access, erected a gate at the boundary with the Shuman property. The court notes the deposition testimony shows the gate erected by Trust in 2010 did not actually lock and did not, in fact, block access to the path leading to the beach.
Wallace and Nusbaum, however, failed to establish a prima facie case entitling them to summary judgment on their cause of action for a prescriptive easement (see Schwengber v Hultenius , 160 AD3d 1083, 74 NYS3d 120 [3d Dept 2018]; Morales v Reilly , 28 AD3d 623, 813 NYS2d 518 [2d Dept 2006]; see also Colin Realty Co ., LLC v Manhasset Pizza , LLC , 137 AD3d 838, 26 NYS3d 606). Wallace testified in 2016 that she regularly walks along the ocean beach in the summer months, that she walks down Windmill Lane and the path at issue to gain access to the beach, and that she has done so since she and Nusbaum purchased 11 Windmill Lane in 2002. Both Wallace and Nusbaum testified that they have never requested permission to use the path, and that neither Trust nor the Shumans have told them not to walk on their property. Nusbaum, who testified that he paid to repave Windmill Lane after the renovation of his residence, avers in an affidavit that he has contributed to the maintenance costs for the road since he purchased his property. Yet affidavits of Wallace and Nusbaum also aver that they received a letter in May 2010 from the Shumans advising that, despite a "Private Property No Entry" sign posted by Trust, the residents on Windmill Lane were welcome to use the beach path. The claimed receipt of such letter, allegedly addressed to all residents of Windmill Lane, raises a question as to whether Wallace's and Nusbaum's use within the 10-year prescriptive period was hostile or permissive. Neither the affidavit of Barbara Blumberg, a real estate agent who states merely that it was her "understanding" that the sellers of 11 Windmill Lane used the path to access the beach, nor the affidavits of Anthony Parkinson, who owned such property from 1985 to 1989, and his wife at the time, Joan Eldridge, are sufficient to meet Nusbaum and Wallace's initial burden of showing a continuous and uninterrupted use by them and their predecessors in interest for the required 10-year period (see Palma v Mastroianni , 276 AD2d 894, 714 NYS2d 537 [3d Dept 2000]).
As to 16 Windmill Lane, Joline Stemerman testified that 16 Windmill Lane LLC, a limited liability company of which she was a member, acquired the property in 2010, that the residence was uninhabitable the following year due to renovations, and that the property currently is owned by a trust. She testified that she and her children regularly use the path to walk to the beach during the summer months. Having owned the property for less than 10 years, Joline Stemerman and David Stemerman, the trustees of the Stemerman trusts, rely on an affidavit of Peter Schaeffer to establish their prescriptive easement claim. Such affidavit, however, is insufficient to make out a prima facie case, as there is no indication Schaeffer's allegations regarding his various relatives' use of the path to access the beach are based on direct, personal knowledge (see CPLR 3212 [b]; Rygel v 8750 Bay Parkway , LLC , 16 AD3d 572, 792 NYS2d 160 [2d Dept 2005]; see generally S .J. Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 ; cf. Plattekill Mtn . Ski Chalet , LLC v Ski Plattekill , Inc., 100 AD3d 1094, 953 NYS2d 374 [3d Dept 2012]). The court notes the amended affidavit of Peter Schaeffer submitted with the reply papers was not considered its determination of these motions (see Adler v Suffolk County Water Auth ., 306 AD2d 229, 760 NYS2d 523 [2d Dept 2003]; Voytek Tech . v Rapid Access Consulting , 279 AD2d 470, 719 NYS2d 112 [2d Dept 2001]). A party's "prima facie burden cannot be met by evidence submitted for the first time in reply papers" ( Yeum v Clove Lakes Health Care & Rehabilitation Ctr ., Inc., 71 AD3d 739, 739, 895 NYS2d 742 [2d Dept 2010]). Thus, absent admissible evidence that the prescriptive rights of the predecessors in title of 16 Windmill Lane had matured prior to the time Trust disputed the use of his property to access the beach, or even that their predecessors in title openly, notoriously and continuously used the pedestrian right of way, Joline Stemerman and David Stemerman failed to make prima facie case of entitlement to summary judgment in their favor on their prescriptive easement claims (cf. Brocco v Mileo , 144 AD2d 200, 535 NYS2d 125).
As to those plaintiffs who established a prime facie case that prescriptive easements exist for use of the path from the southern end of Windmill Lane to the Atlantic Ocean beach, the burden shifted to Trust to raise a triable issue as to whether the use of such right of way by plaintiffs and their predecessors in interest was permissive (see Ciringione v Ryan , 162 AD3d 634, 78 NYS3d 421; 315 Main St . Poughkeepsie , LLC v WA 319 Main , LLC , 62 AD3d 690, 878 NYS2d 193). Trust's assertion that plaintiffs are not entitled to the presumption of hostility, because deposition testimony and the statements in their affidavits and the affidavits of their nonparty witnesses that they never were prevented from using the beach access path demonstrate their use was not hostile, but permitted as a neighborly accommodation, is rejected (see Fila v Angiolillo , 88 AD2d 693, 451 NYS2d 316 [3d Dept 1982]; cf. Oppedisano v Arnold , 143 AD3d 873, 39 NYS3d 499 [2d Dept 2016]; Taverni v Broderick , 111 AD3d 1197, 975 NYS2d 807 [3d Dept 2013]; Allen v Mastrianni , 2 AD3d 1023, 768 NYS2d 523 [3d Dept 2003]). Absent from Trust's submissions in opposition to plaintiffs' motion is evidence that Trust, the Shumans or their predecessors in title attempted to stop the use by such plaintiffs or plaintiffs' predecessors in title before their respective prescriptive easements matured (see Fila v Angiolillo , 88 AD2d 693, 451 NYS2d 316; New York State Elec. & Gas Corp. v Persson , 64 AD2d 194, 409 NYS2d 440 [3d Dept 1978]). "A matured easement appurtenant . . . passes with the transfer of the dominant estate so long as there is privity of estate and undoubted intent . . . to convey the easement" ( Fila v Angiolillo , 88 AD2d 693, 694, 451 NYS2d 316). Contrary to the assertion by Trust's attorney, evidence that people who rented plaintiffs' properties would also use the path to access the beach does not constitute proof that the right of way was used by the general public (cf. Burcon Props. v Dalto , 155 AD2d 501, 547 NYS2d 362 [2d Dept 1989]; Susquehanna Realty Corp. v Barth , 108 AD2d 909, 485 NYS2d 795 [2d Dept 1985]).
Accordingly, summary judgment in favor of plaintiffs is granted as to the first, second, and fourth causes of action, but denied as to the third and fifth causes of action. As issues of fact exist as to whether Wallace and Nusbaum have a matured prescriptive easement and whether the predecessors in title of 16 Windmill Lane had matured prescriptive easement rights, the applications by Trust for summary judgment in his favor as to the third and fifth causes of action are denied. Summary judgment dismissing the sixth cause of action, however, is granted, as plaintiffs do not dispute the evidence submitted with Trust's moving papers demonstrating that an express easement permitting the use of the pedestrian path to access the beach is not included in their respective deeds.
As to the cause of action for a declaration that plaintiffs' properties are benefitted by an easement over the easterly 25-feet of the Windmill Lane easement that runs across the DAT Trust property, there is no dispute that the 1949 deed to R.E. Dowling Realty Corporation transferred Hopksinon's interest to the parcel of property located on the eastern side of Windmill Lane running from Further Lane to the "mean high water line" of the Atlantic Ocean beach. As discussed earlier, the 1949 deed, properly recorded with the County Clerk, refers to a 50-foot wide private road and states that the transfer of title includes "a perpetual right-of-way over the westerly twenty-five (25) feet of the fifty (50) foot private road" discussed in the metes and bound description of the property. The deed reserves for Hopkinson a "permanent right-of-way over the easterly twenty-five (25) feet [of the private road] for ingress to and egress from other premises" owned on the western side of the road "from and to Further Lane," and unambiguously states that such private road "shall be and remain a common driveway for the benefit of the owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of [Hopkinson] on the west." It further states that the cost for maintaining the private road shall be divided between Hopkinson, "his grantees, heirs or assigns," and R.E. Dowling Realty Corporation, "its grantees, successors or assigns."
Express easements are governed by the intent of the parties ( Lewis v Young , 92 NY2d 443, 449, 682 NYS2d 657 ). "In determining the extent of an easement claimed under an express grant or reservation, the ordinary rules of construction and interpretation apply, which are essentially those applicable to other written instruments, and to deeds generally" ( Henricksen v Trails End Co ., 303 AD2d 458, 458, 755 NYS2d 903 [2d Dept], lv denied 100 NY2d 506, 763 NYS2d 812 ; see Route 22 Assoc . v Cipes , 204 AD2d 705, 613 NYS2d 33 [2d Dept 1994]). The primary rule of construction of deeds involving the grant or reservation of an easement is that "the real intention of the parties is to be sought and carried out whenever possible, at least when not contrary to settled principles of law or statutory prohibitions" ( Henricksen v Trails End Co ., 303 AD2d 458, 458-459, 755 NYS2d 903; see Loch Sheldrake Assoc . v Evans , 306 NY 297, 118 NE2d 444 ; see also Real Property Law § 240  ["Every instrument creating, transferring, assigning or surrendering an estate in property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument"]). The intention of the grantor "is to be determined in light of all the circumstances; however, one of the most important indications of a grantor's intent is the language in the original deeds" ( Route 22 Assocs . v Cipes , 204 AD2d 705, 706, 613 NYS2d 33).
Plaintiffs' submissions established a prima facie case that their properties are benefitted by an easement appurtenant across the portion of the DAT Trust property within the Windmill Lane easement. Contrary to the assertion by Trust's expert, it is clear from the language used in the 1949 deed that Hopkinson anticipated the future development of the land along Windmill Lane, and that his purpose in establishing a perpetual 50-foot wide easement was to ensure that subsequent property owners could access Further Lane. Significantly, absent from the 1949 deed is any language restricting a subsequent property owner's use of the private road to access only his or her respective parcel of land (see Webster v Ragona , 7 AD3d 850, 776 NYS2d 347 [3d Dept 2004]). Rather, the deed describes the private road as a common driveway for the benefit of the "owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of [Hopkinson] on the west." Having been created by the 1939 Hopkinson deed, the Windmill Lane easement appurtenant passed to subsequent owners of the dominant estates along Windmill Lane, and no evidence has been submitted by Trust demonstrating that such easement has been extinguished in so far as it passes over the DAT Trust property (see Reilly v Achitoff , 135 AD3d 926, 24 NYS3d 687 [2d Dept 2016]; Djoganopoulos v Polkes , 95 AD3d 933, 944 NYS2d 217). Summary judgment in plaintiffs' favor on the seventh cause of action, therefore, is granted. Further, as the documentary evidence establishes the DAT Trust property is benefitted by an express easement over the pedestrian path to the Atlantic Ocean beach, and no issue of fact regarding such easement has been raised, Trust's application for summary judgment dismissing the Shumans' cross claim for declaratory relief also is granted.
As to the application for summary judgment in favor of plaintiffs on their causes of action for injunctive relief, a permanent injunction is an extraordinary remedy that will not be granted absent a clear showing by the party seeking such relief that irreparable injury is threatened and that no other adequate remedy at law exists (see Gaynor v Rockefeller , 15 NY2d 120, 256 NYS2d 584 ; Kane v Walsh , 295 NY 198, 66 NE2d 53 ; Parry v Murphy , 79 AD3d 713, 913 NYS2d 285 [2d Dept 2010]; McDermott v City of Albany , 309 AD2d 1004, 765 NYS2d 903 [3d Dept 2003], lv denied 1 NY3d 509, 777 NYS2d 19 ; Staver Co. v Skrobisch , 144 AD2d 449, 533 NYS2d 967 [2d Dept 1988], appeal dismissed 74 NY2d 791, 545 NYS2d 106 ). Here, it is undisputed that subsequent to the filing of this action, David Trust removed the gate and the gabion erected in the pedestrian easement area, and no evidence has been submitted by plaintiffs showing Trust is interfering with their access to either the Windmill Lane easement or the pedestrian easement. Accordingly, summary judgment in favor of plaintiffs as to the eighth and ninth causes of action is denied, and the applications by David Trust for summary judgment dismissing such causes of action and the cross claim for injunctive relief interposed by Alfred Shuman and Stephanie Shuman are granted.
The branch of third-party defendants' motion for an order granting summary judgment in their favor on the third-party complaint is denied, as untimely. CPLR 3212 (a) provides that if no date for making a summary judgment motion has been set by the court, such a motion "shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown." Absent a showing of good cause for the delay in filing a summary judgment motion, a court lacks the authority to consider even a meritorious, non-prejudicial application for such relief (see Miceli v State Farm Mut . Auto. Ins. Co., 3 NY3d 725, 786 NYS2d 379 ; Brill v City of New York , 2 NY3d 648, 781 NYS2d 261 ). The note of issue having been filed by plaintiffs on February 24, 2017, the statutory 120-day period for making a summary judgment motion expired in this action on June 24, 2017. Third-party defendant's application for summary judgment dismissing the third-party complaint, however, was not made until July 14, 2017, the date it was served (see CPLR 2211), and no explanation for the delay was offered. And though an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment has been made on "nearly identical grounds" ( Grande v Peteroy , 39 AD3d 590, 591-592, 833 NYS2d 615 [2d Dept 2007]; see e.g. Das v Sun Wah Restaurant , 99 AD3d 752, 952 NYS2d 232 [2d Dept 2012]), third-party defendants' application for a judgment in their favor on the third-party complaint involves issues different from the issues in the main action, particularly the Trust defendants' right to use the portion of the Windmill Lane easement running across third-party defendants' properties (see Sheng Hai Tong v K & K 7619 , Inc., 144 AD3d 887, 41 NY3d 266 [2d Dept 2016]; Paredes v 1668 Realty Assoc., LLC , 110 AD3d 700, 972 NYS2d 304 [2d Dept 2013]; cf. Wernicki v Knipper , 119 AD3d 775, 989 NYS2d 318 [2d Dept 2014]).
Finally, the branches of third-party defendants' motion seeking cancellation of the notices of pendency filed by Trust against 26 Windmill Lane and 32 Windmill Lane and an award for costs and expenses are denied. CPLR 6514 (b) provides that the court "upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel the notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith." The statute further permits a court to award costs and expenses as part of an order cancelling a notice of pendency (CPLR 6514 [c]). Here, the application for a discretionary cancellation of the notices of pendency filed against third-party defendants' properties improperly was brought on by notice of motion, rather than by order to show cause (CPLR 6514 [b]). Moreover, third-party defendants' conclusory allegation that the third-party action was not brought in good faith, but to "use the Evans parties' property rights as leverage in the Sacasa action" is insufficient to meet their burden on such application (see Reingold v Bowins , 34 AD3d 667, 826 NYS2d 316 [2d Dept 2006]; cf. Lazar v Maragold Group , 150 AD2d 645, 541 NYS2d 520 [2d Dept 1989]). The motion by third-party defendants, therefore, is denied. Dated: September 18, 2018 Riverhead, New York VINCENT J. MARTORANA, J.S.C.