The following papers read on this motion:Notice of Motion and Affidavits XAffirmation in Opposition XReply Affirmation XRelief Requested Motion by the plaintiffs for an order granting summary judgment in their favor. The defendants submit opposition. The plaintiffs submit a reply affirmation.BackgroundThe plaintiffs initiated the instant action seeking a judgment declaring that the defendants are the only individuals and entities covered by an easement, as described in deeds dated February 9, 1978 and August 20, 1979, and declaring that plaintiffs’ proposed construction does not violate the subject easement.The subject easement was created by a deed, dated February 9, 1978, between Mill Valley Realty, Ltd. (hereinafter referred to as “Mill Valley”), and Robert H. Spittell, Post No. 1285 Inc. a/k/a the American Legion. The deed refers to “a strip of land now or formerly known as Rita Street (American Legion Way) being east of and adjacent to premises known as Section 29, Block C-3, Lot 100 and also being west of and adjacent to premises known as Section 29, Block C-1, Lots 202, 204, 205 and 206 and west of and adjacent to Section 29, Block C-3, Lots 500 and 501. RESERVING, however, to the party of the first part, its heirs or successors and assigns, a right of way over the portion of said parcel of land conveyed herein north of Doig Place to and from the Long Island Sound to provide access by foot from the party of the first part’s property to the said Long Island Sound.” Of note, Rita Street is currently known as American Legion Way, and Doig Place is currently known as Leeward Cove.A second deed, dated August 20, 1979, between Mill Valley and Louis and Karen Pappas, references “[t]he right to restrict the use of that portion of Rita Street, which lies west of Section 29, Block C-3, Lot 503 and east of Section 29, Block C-3, Lot 100 and north of Doig Place… as set forth in the Rider, a copy of which is annexed hereto and made a part hereof.” The attached Rider refers to a “portion of Rita Street, which lies west of Section 29, Block C-3, Lot 503 and east of Section 29, Block C-3, Lot 100 and north of Doig Place in the Incorporated Village of Bayville.” The rider states “[t]he use of said premises shall be for access to Long Island Sound and for a private beach along with the other specific Grantees of this right up to nine Grantees who own houses within the area bounded by Donald Street on the East, Bayville Avenue on the South, Rita Street on the West and Doig Place on the North and for no other persons.”A seawall was subsequently built in 1980. Plaintiffs herein seek to construct a new walkway, which would be located to the east the current walkway, and build stairs over the seawall, ultimately providing access only to the area north of the seawall, and restricting the defendants’ access to the area to the south of the seawall. The defendants oppose the proposed construction, arguing that it violates the subject easement which provides access and use of the full area north of Doig Place, including south of the 1980 seawall.Applicable LawIt is well-settled that in order “[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212 [b]), and he must do so by tender of evidentiary proof in admissible form” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, citing Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065, 1067-1068). Conclusory allegations, bold assertions or speculation are simply insufficient to successfully oppose a motion for summary judgment (Zuckerman, supra; Rotuba Extruders v. Ceppos, 46 N.Y.2d 223).The court’s function on this motion for summary judgment is issue finding rather than issue determination (Sullivan v. Twentieth Century Fox Film Corp., 165 N.Y.S.2d 498). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders, supra). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 200 N.Y.S.2d 627). The role of the court is to determine if bonafide issues of fact exist, and not to resolve issues of credibility (Gaither v. Saga Corp., 203 A.D.2d 239; Black v. Chittenden, 69 N.Y.2d 665). In reviewing a motion for summary judgment, the court evaluates the evidence in the most favorable light to the party opposing the motion (Sullivan, supra).“[I]n 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 443). “Where — as here — the language of a grant does not itself reveal an intent to preclude the landowner’s right to relocate the right of way, consideration must also be given to circumstances surrounding the conveyance, including the conduct of the parties both prior and subsequent to the grant” (Id., citing Bakeman v. Talbot, 31 N.Y. 366).DiscussionAs a preliminary matter, the easement created by the 1978 and 1979 deeds is subject only to homeowners within the designated enclosure. Particularly, such is made clear by the Rider to the 1979 deed, which specifies that the assignees of Mill Valley may use “a private beach along with the other specific Grantees of this right up to nine Grantees who own houses within the area bounded by Donald Street on the ease, Bayville Avenue on the south, Rita Street on the west and Doig Place on the north and for no other persons.”Regarding the proposed construction, plaintiffs allege that it would not frustrate the defendants, increase their burden, or lessen the utility of their right of way. Plaintiffs assert that they have the right to construct the proposed walkway and stairs without the consent of the defendants, claiming that the intent of the subject easement was merely to provide a undefined, general right of passage to the Long Island Sound, as opposed to a fixed location on the premises. Plaintiffs further claim that the 1979 deed restricts use by the defendants rather than qualifying access.In opposition, the defendants point to the Rider of the 1979 deed, specifically the phrase “access to the Long Island Sound and for a private beach along with the other specific Grantees of this right.” Defendants argue that the “private beach” referenced in the 1979 deed is proof that the easement was intended to create more than a mere right of passage as argued by plaintiffs.Defendants further provide a letter, dated September 9, 1985, written by Jeffrey D. Forchelli, whose signature appears on the 1978 and 1979 deeds as President of Mill Valley. The subject line of the 1985 letter is “Beach at the North End of Rita Street” and states therein that “[t]he entire beach area was to be used by the homeowners. That meant all the way from Doig Place to the Long Island Sound. In the letter, Mr. Forchelli further stated “[i]t is my opinion that you are entitled to use the beach area North of the new seawall as well as the area South of the new seawall for beach purposes. This was clearly the intent of all parties concerned when the documents were drawn. As the architect of the entire plan, I affirm that there was no intention to ever have you not be able to sit South of the 1980 seawall. The only seawall that was not to be sat upon was the one shown in the 1979 survey.”In light of the foregoing, it cannot be said that plaintiffs’ proposed construction does not violate the subject easement as a matter of law (see Lewis, supra; see also Zuckerman, supra). There is, at least, an issue of fact as to whether the subject easement reserves for the defendants use of the entire area north of Doig Place/Leeward Cove.ConclusionIn light of the foregoing, it is herebyORDERED that branch of the plaintiffs’ motion for summary judgment with regard to a declaratory judgment that the proposed construction would not violate the subject easement is denied, and it is furtherORDERED that branch of the plaintiffs’ motion for summary judgment with regard to a declaratory judgment that the defendants are the only individuals and entities covered by the subject easement is granted, and it is furtherORDERED that the plaintiffs are directed to Settle Judgment on Notice to the Clerk. A copy of this order with notice of entry shall accompany the proposed judgment.Dated: March 14, 2019
