By Connolly, J.P.; Christopher, Genovesi, Dowling, JJ.
WILLIAM C. BERG, plf, GEORGE BUBARIS, ET AL., app, v. MICHAEL J. CAHILL, ETC., ET AL., res — (Index No. 621195/16) Gordon & Juengst, P.C., Shoreham, NY (Jennifer A. Juengst of counsel), for appellants. Glynn, Mercep and Purcell, LLP, East Setauket, NY (A. Craig Purcell and Joseph J. Tromba of counsel), for respondents Michael J. Cahill, as trustee of the Maude D. Roberg Revocable Living Trust and Maude D. Roberg Revocable Living Trust. Nicholas R. Ciappetta, Town Attorney, Huntington, NY (J. Edward Gathman, Jr., of counsel), for respondents Town of Huntington and Town of Huntington Planning Board. Esseks, Hefter, Angel, Di Talia & Pasca LLP, Riverhead, NY (Anthony C. Pasca of counsel), for respondents Fort Slongo, LLC, Preserve at Indian Hills, LLC, and Indian Hills CC, LLC. In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that the plaintiffs have an exclusive easement over certain real property, the plaintiffs George Bubaris, Joan Bubaris, and Theresa M. Federico appeal from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated January 16, 2019. The order, insofar as appealed from, (1) denied the plaintiffs’ cross-motion for summary judgment on the first, third, fourth, and fifth causes of action, (2) granted those branches of the motion of the defendants Fort Slongo, LLC, Preserve at Indian Hills, LLC, and Indian Hills CC, LLC, which were, in effect, for summary judgment declaring that the plaintiffs did not have an exclusive easement over certain real property and pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action insofar as asserted against them, (3) granted that branch of the cross-motion of the defendants Town of Huntington and Town of Huntington Planning Board which was pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against them, and (4) granted those branches of the cross-motion of the defendants Michael J. Cahill, as trustee of the Maude D. Roberg Revocable Living Trust, and Maude D. Roberg Revocable Living Trust which were pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action insofar as asserted against them, and, in effect, searched the record and awarded those defendants summary judgment declaring that the plaintiffs did not have an exclusive easement over certain real property. ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment, inter alia, making an appropriate declaration in accordance herewith. The plaintiffs and the defendant Maude D. Roberg Revocable Living Trust (hereinafter the Trust) own neighboring parcels of real property in Northport that were once part of a 19.393 acre tract of land owned by a common predecessor in interest. The parcels owned by the plaintiffs enjoy a “right of way” over a private road abutting their properties which runs along the parcels that were sold to the Trust. The easement over the private road had been granted to each of the plaintiffs’ predecessors in title by the common predecessor in interest when those parcels were conveyed, together with a restrictive covenant against use of any of the lands that were part of the original 19.393 acre tract “for the purposes of business or trade.” The defendants Fort Slongo, LLC (hereinafter Fort Slongo), and Preserve at Indian Hills, LLC (hereinafter the Preserve), own a golf course adjacent to one of the parcels owned by the Trust over which the private road runs (hereinafter the trust property), and in 2016, they entered into a contract with the Trust to purchase the trust property, including the deeded “right of way.” In 2017, the Preserve filed an application with the defendant Town of Huntington Planning Board (hereinafter the Planning Board) to cluster develop the golf course and subdivide the trust property into multiple residential units. Thereafter, the plaintiffs commenced this action seeking, among other things, a judgment declaring that their rights under the easement are exclusive (first cause of action), that the proposed subdivision of the trust property would violate the restrictive covenant prohibiting use of the trust property for business or trade (third cause of action), that any modification or widening of the private road on the trust property to accommodate the proposed subdivision would unreasonably interfere with their easement (fourth cause of action), and that the proposed subdivision of the golf course would be ultra vires to stated provisions of the Town Code of the Town of Huntington (fifth cause of action). Fort Slongo, the Preserve, and the defendant Indian Hills CC, LLC (hereinafter collectively the Fort Slongo defendants), moved, inter alia, in effect, for summary judgment declaring that the plaintiffs’ easement over the private road on the trust property was not exclusive and pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action insofar as asserted against them. The plaintiffs cross-moved for summary judgment on the first, third, fourth, and fifth causes of action. The defendant Town of Huntington and the Planning Board (hereinafter together the Town defendants) cross-moved, among other things, pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against them, and the defendant Michael J. Cahill, as trustee of the Trust, and the Trust (hereinafter together the Trust defendants) cross-moved, inter alia, pursuant to CPLR 3211(a) to dismiss the first, third, fourth, and fifth causes of action insofar as asserted against them. In an order dated January 16, 2019, the Supreme Court, among other things, denied the plaintiffs’ cross-motion, granted those branches of the motions of the Fort Slongo defendants, and granted that branch of the cross-motion of the Town defendants. The court also granted those branches of the Trust defendants’ cross-motion which were pursuant to CPLR 3211(a) to dismiss the third, fourth, and fifth causes of action insofar as asserted against them, and, in effect, searched the record and awarded the Trust defendants summary judgment declaring that the plaintiffs’ easement over the private road on the trust property was not exclusive. The plaintiffs George Bubaris, Joan Bubaris, and Theresa M. Federico (hereinafter collectively the appellants) appeal. We affirm.
