WILLIAM HOLST LARRY PIERCE LILLIAN BRAUNBACH DAVID MARTIN LINDA ZGODA MARTIN MARY PANKOW STEVEN SMITH ROBIN MARIE SMITH ROBERT MARTIN CARRIE MARTIN DAVID WINNERT MICHELE MUELLER KENNETH ULICKI AND MARILYN ULICKI PLAINTIFFS RESPONDENTS v. VICTOR LIBERATORE AND SALLY LIBERATORE DEFENDANTS APPELLANTS (2014)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiffs commenced this action seeking injunctive and other relief regarding their right to use an easement over defendants' property.   Supreme Court properly granted plaintiffs' motion seeking summary judgment and permanently enjoined defendants from interfering with, blocking, or hindering in any manner the reasonable and incidental use of the right-of-way over defendants' property.   The deeds, surveys, maps, and “ ‘pertinent surrounding circumstances' “ established that certain plaintiffs have a right-of-way to access Chautauqua Lake over the western portion of defendants' property, as described in a deed granted to defendants' predecessor in 1971 (Mertowski v. Werthman, 45 AD3d 1312, 1313).   The court also properly concluded that the use of the easement included plaintiffs' placement of docks in the water, because that was a “ ‘reasonable use incidental to the purpose of the easement’ “ (Hush v. Taylor, 84 AD3d 1532, 1535;  see Monahan v. Hampton Point Assn., 264 A.D.2d 764, 764).

In opposition to the motion, defendants argued that the action should be dismissed because plaintiffs filed an order to show cause and complaint, rather than a summons and complaint (see generally CPLR 304[a] ).   Plaintiffs' failure to file a summons was a defect in personal jurisdiction, which defendants waived by failing to raise it in their answer or amended answer (cf.  Goldenberg v Westchester County Health Care Corp., 16 NY3d 323, 327).   Defendants further argued in opposition to the motion that plaintiffs failed to join as necessary parties other property owners who had the same right-of-way language in their deeds as certain plaintiffs in this case.   That contention, however, was rejected by us on a prior appeal (Holst v. Liberatore, 105 AD3d 1374, 1375), and our holding constitutes the law of the case (see Kaufmann's Carousel, Inc. v Carousel Ctr. Co. LP, 87 AD3d 1343, 1344–1345, lv dismissed 18 NY3d 975, rearg. denied 19 NY3d 938).   We reject defendants' contention in opposition to the motion that plaintiffs also failed to join as a necessary party a property owner who had the same right-of-way language in its deed as defendants.   Plaintiffs were not seeking to use an easement over that nonparty's property but, rather, they seek to use the easement only on defendants' property.   Therefore, that nonparty's interests would not be inequitably affected by the resolution of this action (see CPLR 1001[a];  Ellison Hgts. Homeowners Assn., Inc. v Ellison Hgts. LLC, 112 AD3d 1302, 1305).

Frances E. Cafarell

Clerk of the Court