GOOLER v. ASENCIO (2025)

Plaintiff commenced this action on June 28, 2023 by filing a Summons and Complaint against the Defendant, his next-door neighbor. The impetus for the litigation was that Defendant had erected a fence in between the two adjacent properties and had placed an air conditioning unit behind her side of the fencing, which Plaintiff alleged interfered with his use of an easement. Plaintiff owns 93A Grassy Point Road and Defendant owns 91 Grassy Point Road.

Plaintiff seeks a declaratory judgment that the written easement of 1925 ¹ is in full force and effect, or in the alternative, a declaratory judgment that Plaintiff has a prescriptive easement. Further, Plaintiff succeeded in obtaining temporary relief before this Court when the prior jurist ordered Defendant to remove the fence and relocate the air conditioning unit pending a final determination in this case, and he now seeks a permanent injunction enjoining Defendant from encumbering, obstructing or limiting Plaintiff's access to the easement. Plaintiff also seeks counsel fees against Defendant. Defendant denies that there is an easement, that she ever had notice of any easement associated with her property, and contends that because the 1925 written easement purportedly in favor of Plaintiff against Defendant was not recorded until 2023, it was effectively extinguishing it upon her closing on the sale of the property. Defendant also seeks counsel fees from Plaintiff.

On January 26, 2024, Plaintiff moved for sanctions, costs and fees against Defendant for her failure to follow the court's order directing her to remove the fence and air conditioning unit. On March 11, 2024, the Defendant cross-moved for summary judgment. On September 30, 2024, the Court (Eisenpress, J.) issued a Decision and Order granting Plaintiff's motion and denying Defendant's motion, concluding that there were genuine issues of facts as to: (1) whether Defendant had actual or constructive notice of the easement before the sale and closing, impacting whether she was a good faith purchaser at the time of the purchase of 91 Grassy Point Road; (2) whether Defendant was or should have been on notice of a reciprocal easement ² if she had conducted a search of her own property records; and (3) whether Plaintiff had acquired a prescriptive easement.

Findings of Fact

On September 10, 2025, the Court began the bench trial on this case. Plaintiff first testified. He stated that the property at 93 Grassy Point Road has been in his family for five generations. He and many past generations have lived there. From 2011 through 2015, he resided at the property, which is a two-family home. As a child, he used to mow the lawn between the two houses, 93 and 91 Grassy Point Road. There are two doorways of 93 Grassy Point Road that face the dwelling located at 91 Grassy Point Rad and are only accessible through the right of way. Generations of the Gooler family used those two doorways facing the Ascensio house. That parcel of land was never used to park cars, except when workers may need to park there temporarily to load or unload something. There is a space of approximately 12 foot 6 inches between the two homes in the front and narrows as one walks towards the rear of the houses. Plaintiff began renting the property out to tenants in 2017.

Defendant started parking a car in the purported easement, and then she erected a fence there. Plaintiff stated that when he saw the car parked in the right of way, he knocked on Defendant's door to find out why the car was parked there. She eventually came outside with a cigarette in hand, blew smoke in his face and said that there is nothing to talk about.

Plaintiff contacted the Town of Stony Point about the car being parked there because there is fire hydrant located at the edge of the easement. Stony Point Building inspector, John Hager, sent Defendant a cease-and-desist letter. Page three of Plaintiff's exhibit 11, entitled “Advisory Notice”, was transmitted to Defendant advising her that the space between the home “close to neighboring dwelling” is “not a legal DRIVEWAY” and cautioned her not to park there or risk the issuance of a Violation punishable by fine or imprisonment or both. Plaintiff testified that even after the letter was sent, Defendant took her time in moving her car. Later on in May 2023, Plaintiff saw that Defendant was erecting a fence in that same location, and photographs in evidence corroborate that testimony. Plaintiff was concerned that the fence was within three feet of his dwelling and impacted ingress and egress. Plaintiff's tenants were about to move in, evidenced by a lease entered into evidence, ultimately, they were unable to take possession of the property because the fence was too close to the door; they could not get a bed or couch into the apartment because the fence impeded such access. Plaintiff did not contact Defendant directly when the fence was erected. Instead, he hired an attorney and contacted a surveyor. Mr. Drabick came to the property to perform a certified survey which depicted the Right of Way. Plaintiff's attorney sent a cease-and-desist letter to Defendant about the fence, and when she did not remove it, he commenced this litigation.

Defendant purchased the property from the Gralls in 2007. Since then, Plaintiff states that he has maintained the strip of land, including snow removal, cutting grass, and removing leaves. He personally stopped doing the landscaping on that property in 2017 and hired a landscaper. Maintenance on parcel was required because of the doorway facing outwardly into that area. Snow would have to be cleared to keep the area safe for people traversing the area.

Plaintiff concedes his name is not on the deed recorded on the property, but states that his ownership is derived from the death of his grandfather, who had acquired ownership of the home as heir to Virginia Gooler, one of the owners named on the deed. His grandfather had assigned his rights to the property to Plaintiff upon his death. Plaintiff has been paying the property taxes on the property since 2011. He has asked for utilities to be paid by the tenants starting in 2017, but he was paying them before that time. Garbage is taken to the street by the right of way.

Defendant only took down a piece of the fence in 2024 after the prior jurist directed her to do it. However, Defendant dragged her feet in taking down the fence, resulting in her having been sanctioned by the Court in September 2024. Plaintiff also had an easement with adjoining Yacht Club so that cars could be parked in that area, but he agreed to terminate that easement. Now, he has the cars parked a newly created driveway in front of 97 Grassy Point Road, another property he and his family own.

Linda Grall ³ testified that she was the prior owner of 91 Grassy Point Road with her late husband from 1980 to 2007. Virginia Gooler had been residing at 93 Grassy Point Road and was her neighbor. The property in between the two homes is an easement. When she and her husband acquired the house, they were told that the easement existed between the two houses. The Goolers maintained the easement and they regularly used the side doors regularly to go in and out of the house.

She testified that in 2007, she sold the home to Defendant and attended the closing. The night before the closing, Defendant and her husband attended a walk-through of the property, and they accompanied Ms. Grall to the deck. Mr. Asencio, Defendant's husband, asked about the property between the two properties and she told him it was an easement. Defendant was present when she made that statement. She further recalls telling them that nothing could be built in the easement.

Anthony Tortorello, the Principal of Full Force Landscaping LLC testified that he was hired by Plaintiff in August 2017 to perform general landscape maintenance for 93 Grassy Point Road. He had been informed that the strip of land between that property and the dwelling located at 91 Grassy Point Road was an easement and that he should cut the grass every other week in that area. Mr. Tortorello confirmed that there are 2 doors on the side of Plaintiff's house facing Defendant's dwelling. He observed the fence when it was erected by Defendant and instructed his workers to do the best that they could to maintain the area in dispute. Now with the fence gone, his company is regularly servicing about 9 feet of the 12 feet of space in the purported easement.

Steven Drabick, licensed surveyor since 1988 has owned his own business since 1989. He has performed over 2,500 surveys, having started in the profession in 1974. He was qualified as expert in surveying. Mr. Drabick was hired by the Plaintiff to perform a survey of his properties, the one located at 93 Grassy Point Road and one located at 97 Grassy Point Road. There was a prior survey in the Plaintiff's possession and that document reflected a Right of Way which ran along the boundary between the two parties' properties, 91 and 93 Grassy Point Road. Mr. Drabick physically inspected the property, and the fence was erected at the time of the inspection. He had difficulty with bringing the survey equipment to the area at issue, given the small space left once the fence was there. The fence left 3.2 feet and 2.7 feet from the Plaintiff's home to the fence itself, even though it was constructed on the Defendant's side of the property by almost a half a foot. The actual language of the documents he reviewed, the two 1925 Written Easements, makes clear that there is a reciprocal easement, in his opinion. He admitted that his survey only reflected one of the two easements; however, he indicated that the language contained in that document that it was “in common” essentially puts the reader on notice that there is reciprocal easement.

Finally, Plaintiff called Donald Lynch, a well-known title examiner in Rockland County. He formed his company in 2014 after having worked as a title examiner since 1986. He estimates to having prepared 100,000 title reports over the course of his career and was certified as an expert in the field of title examination.

Mr. Lynch examined the titles for both parties' properties. He located documents from 1925 from the “Grall” property, now the Defendant's property, giving the “Goller” family, now the Plaintiff's property, five-foot access to the Plaintiff's property by way of easement. This written easement was recorded in 1957, but executed in 1925. There is a reciprocal easement also executed in 1925, albeit not recorded until 2023. Both Rights of Way are in writing and notarized. The documents create easements for a subservient estate as against a dominant estate in a reciprocal manner. Mr. Lynch testified that he had to do historical research, as given his experience with properties in Rockland County, he was aware that inter-family transactions run rampant in Stony Point and other maps and aids are needed to figure out all of the transactions and the history of conveyance. Thus, he accessed the 1895 Rockland County Atlas from the Rockland County Clerk historical archives to figure out the nature of the property transactions in this area of Stony Point. The AW Wiles Co. was the original grantor of the two adjacent properties, and the atlas shows the strip of property at issue in this case. Mr. Lynch admitted that this atlas did not create the easement, but believes that the 1925 reciprocal written easement documents did. Easements, once written and signed, create a benefit for the subservient estate, he stated, and he further opined that such documents do not need to be recorded to be in full force and effect. While recording can provide an advantage in the event of a foreclosure or other legal action, failure to record an easement does not mean that the easement does not exist. Mr. Lynch did not believe that in every single case an easement must it be recorded in order to run with the land. He explained that examination of title is not limited to recorded documents. For example, a property can pass by will through Surrogate's court without there having been an updated recorded deed. Likewise, easements can be created and not recorded, but still in effect. Part of the duty of a title examiner in performing due diligence is looking back as all of the property transfers. Most title examiners only do a “40-year-search” when looking back, but that can be insufficient with an older county like Rockland. Here, both easements were created in 1925, created as part of a mutual scheme when the Wiles Co. granted the properties to the “Grall” family (now Defendant's property) and the “Goller” family (now the Plaintiff's property). The documents evidence that the two new owners in 1925 wanted to rectify what each property holders' rights would be vis-à-vis that strip of land. The timing of the written easements, signed on the same day and shortly after the acquisition of the property, appears to be a reciprocal easement. The one recorded easement from 1957 which runs with the Defendant's property contains language that suggests there was a complimentary easement.

Plaintiff rested and Defendant moved for a directed verdict, and the Court reserved decision.

Defendant testified next. She moved into the property in September 2007. She and her son purchased the property. She hired people to perform an inspection and a title search on the property, and she also hired an attorney to represent her at closing. She met the Gralls at the closing, but initially denied having met with Ms. Grall prior to the closing. She did not recall discussions with anyone about an easement prior to closing. While she did perform a walk-through of the property prior to closing, she was there with her family and real estate agent; she did not deny that Ms. Grall was there but testified that she could not remember whether Ms. Grall was there.

Defendant stated that she first heard about the Right of Way when she went to put the fence up. She testified that the Town of Stony Point notified her about the problem with the fence. However, the documents in evidence do not support that testimony. Plaintiff's exhibit 11, certified records from the Town of Stony Point's building inspector's office, contain letters and advisory notice from the Town to Defendant, but nothing about her fence. In fact, on cross-examination, Defendant was adamant that she never applied to the Town for a permit to erect the fence because she had done her own research and concluded that a permit was not required.

Defendant recalls receiving an Advisory Notice in or about 2021 about requesting permission to make the strip of land at issue into a driveway.⁴ When presented with the document on the stand, Defendant stated that the May 18, 2021 notice was addressed to the “owner” of the property, but not to her specifically. Although, the Court's review of that document shows that it was addressed to her and her son. Defendant recalled receiving the notice, and she testified that after receiving this, no longer pursued making the area into a driveway. However, the notice was not in response to a request by Defendant to make the strip of land into a driveway; it was to caution her that she had been utilizing that area improperly as a driveway and told her to stop doing that until such time she obtained a proper permit to install a driveway. There is nothing in the record to support that Defendant ever applied for a permit to install a driveway in the purported easement. Upon cross-examination, Defendant admitted to submitting an application to place the air conditioning unit in the strip of land, but was denied because of the Right of Way. She also had other applications for permits for a semi-inground pool and solar panels, which she said are still open (although the documents reveal that the applications have expired). She had also applied for a permit for a generator that never came to fruition.

Defendant recalls having gone to the house two to three times before going into the contract for sale of the property. She never saw any one or any cars in that strip of land when she had gone there. She also testified that she cuts her own lawn and has been doing so since 2012, including about 75% of the strip in dispute. At first, she testified that she has never observed someone else in the strip of land, but then later in her testimony when asked about the security cameras she has facing Plaintiff's home, she admitted that she has seen people access the side doors of Plaintiff's residence, the doors facing her home, and using the land at issue as a mean of ingress and egress.

During cross-examination, Defendant admitted that in 2020, she received notice from the Highway Department that she had constructed a cement wall, which she characterized in her testimony as a “curb”, in a Right of Way that the Town has. She was forced to remove the wall because it was placed in the County's Right of Way. The photographs in evidence of the “curb” show a partial wall erected in front of Defendant's doorway, and its height cannot be characterized as a curb.

Finally, Defendant called Bridget Casey, owner of Jade Abstract and a well-known attorney and title examiner in Rockland County, to the stand. Ms. Casey has owned the company for more than 40 years. Mostly, she supervises searches that her employees or outside contractors perform as opposed to preparing her own reports, and has herself performed 25,000 to 30,000 searches at least over the years. Ms. Casey was qualified as an expert in title examination.

Ms. Casey explained that there is a “race notice” filing system in Rockland County. Thus, the recording of a document before another similar document on the same grantor gives the first filer property and serves as constructive notice on the world as to the status of a property. Plaintiff's property lists Adeena Goller and Virginia Gooler, Plaintiff's grandfather's great aunts who are long gone, as the title owners. Defendant has an easement and interest in the Plaintiff's property which was granted by the prior deed holder. Thus, Plaintiff's property is the burdened parcel, and Defendant has the benefit of the easement. Ms. Casey opined that the other easement which burdens Defendant's property was recorded in 2023 with respect to these parcels and it has no effect on Defendant and her property. The easement recorded in 2023 is outside the chain of title, recorded outside the period of ownership. According to Ms. Casey, there would be no way for a title searcher to have discovered the easement records recorded in 1957, as there would no reason ordinarily do a title search on the adjacent property.

Ms. Casey agreed that the three legal elements of an easement were satisfied in this case, but that they did not burden Defendant's property because she was unaware of the easement's existence. However, Ms. Casey had not physically gone to the two properties at issue and was not aware the means for egress or ingress to Plaintiff's dwelling faces Defendant's property which the strip of land at issue is located. In reviewing the photographs in evidence of how the strip was impacted by Defendant's choice to erect a fence there, she admitted that the fence was relatively close to both of the homes. Ms. Casey agreed that in 1925, the property was converted from the Wiles Co. to “Goller” and “Grall”, and that an easement was filed on Plaintiff's property, recorded in 1957. She acknowledged that both easements were dated on the same date, and were issued almost simultaneous was the transfer of the property from Wiles to Goller and to Grall. Ms. Casey testified that in 1925, the easement would have been reciprocal given the two easement documents. When asked about whether the words “in common” should have signaled the reader to inquire as to whether there was a related easement, Ms. Casey stated that such words are “very contextual” and not so easy to interpret. Generally, though, it would mean other persons or properties involved in her opinion. Ms. Casey stated that Defendant should have been made aware by her title insurance provider at the time of closing in 2007 that she was benefactor of an easement as a dominant estate with Plaintiff being the subservient estate.

While Ms. Casey opined that the 2023 record of the easement does not affect these two properties at the moment, she stated that if the Court were to issue a declaratory judgment that the easement is valid and in full force and effect, the judgment from this case would be cross-indexed and discoverable by future title searchers if and when Defendant were to go to sell the property.

Legal Analysis

Several facts in this case are not in dispute. Both parties agree that the original owners of the two parcels, the Goller family (now Gooler) and the Grall family, purchased from the A.W. Wiles Co. in 1925, entered into reciprocal written easements that was signed and notarized. Those easements each granted the other use of the 5 feet of space adjacent to their respective dwelling such that both owners could utilize virtually the entire parcel of land between their homes to “pass and repass on foot, or with animals, vehicles, loads or otherwise, in common with the [other] party”. (Brackets added). Plaintiff's predecessors recorded their easement which made their property the subservient estate and the Defendant's property the dominant estate in 1957. Defendant's predecessors, however, did not record the other, reciprocal easement prior to Defendant's purchase of the property in 2007. That easement was not recorded until 2023. A review of the two easements signed in 1925 clearly supports that there was valid, reciprocal written easement conveyed by the owners of both properties to the other owner. “An easement appurtenant occurs when the easement (1) is conveyed in writing, (2) is subscribed by the creator, and (3) burdens the servient estate for the benefit of the dominant estate.” Djoganopoulos v. Polkes, 95 AD3d 933, 935 (2d Dept. 2012). Defendant maintains that her property is not encumbered by the easement because the easement was not recorded prior to her purchase of the property. It is true that “[t]he recording of a deed creating a right of way over a grantor's remaining adjacent land constitutes constructive notice to a purchaser who later takes title to the servient parcel from the same grantor.” Corrarino v. Byrnes, 43 AD3d 421, 423-424 (2d Dept. 2007)(brackets added). “Owners of a servient estate are bound by constructive or inquiry notice of easements which appear in deeds or other instruments of conveyance in their property's direct chain of title.” Id.

Defendant essentially contends that the failure to timely record the deed renders Plaintiff's case fatal, as she had no constructive notice of the easement. She relies on RPAPL § 291 in support of that claim, which states:

Every such conveyance not so recorded is void as against any person who subsequently purchases or acquires by exchange or contracts to purchase or acquire by exchange, the same real property or any portion thereof, or acquires by assignment the rent to accrue therefrom as provided in section two hundred ninety-four-a of this article, in good faith and for a valuable consideration, from the same vendor or assignor, his distributees or devisees, and whose conveyance, contract or assignment is first duly recorded, and is void as against the lien upon the same real property or any portion thereof arising from payments made upon the execution of or pursuant to the terms of a contract with the same vendor, his distributees or devisees, if such contract is made in good faith and is first duly recorded.

(Emphases added).

However, while recording a deed is clear evidence of constructive notice being given to a prospective buyer of a property, recording is not the only way such notice can be given. Inquiry notice is deemed to have been given “[i]f the facts within the knowledge of the purchaser are of such a nature, as, in reason, to put him upon inquiry, and to excite the suspicion of an ordinarily prudent person and he fails to make some investigation, he will be chargeable with that knowledge which a reasonable inquiry, as suggested by the facts, would have revealed.” Holdings, LLC v. 214 Lafayette House, LLC, 177 AD3d 103, 120 (1st Dept. 2019)(brackets added)(citing Anderson v. Blood, 152 NY 285, 46 N.E. 493 (1897)).

Thus, the Court must determine whether Defendant had constructive or actual notice of the easement prior to closing on the sale of her property, in which case she would not be deemed to be a “good faith purchaser” and the Court would be empowered to issue a declaratory judgment that would hold the easement encumbering her property to be in full force and effect despite it not having been recorded at the time of the sale and closing in 2007.

A good faith purchaser for value is not bound by the easement which is not properly recorded prior to the purchase of the encumbered property. However, a purchaser cannot claim good faith purchaser status if it had actual or constructive notice of the easement. Where there is open and visible use of property by a third person, a purchaser is placed on constructive notice of the possible existence of prior rights. If no inquiry is made, the purchaser is charged with the knowledge that a reasonable inquiry concerning the defect would have revealed.

Conwell Prop. Inc. v. SAG Route Six, LCC, 210 AD3d 1051, 181 N.Y.S.3d 95 (2d Dept. 2022); see also Incorporated Vil. of Freeport v. People, 236 AD3d 765 (2d Dept. 2025). Plaintiff argues that the testimony of Ms. Grall and the documentary evidence admitted at trial support she had both actual and constructive notice of the easement; Defendant argues that her testimony clearly supports she did not.

Defendant's expert, Bridget Casey, opined in her written report and in her testimony that at the time of the purchase of the property located at 91 Grassy Point Road by Defendant, the existence of either easement would not have been apparent. She also noted that a title examiner would not ordinarily search title of an adjacent parcel of property. That is where Plaintiff's expert disagrees. Donald Lynch testified as to the unique nature of Rockland County, particularly Stony Point, where there were many inter-family transfers of property necessitating a title examiner to complete a full inspection of complete history of the transfer of the property at issue. He opined that in looking back at the history of the two parcels of land, particularly the 1875 Rockland County Atlas, one can see a strip delineated in the map between what is now the Plaintiff's and the Defendant's properties. While that is not binding, it should have raised the question of what that space was to anyone researching title. Moreover, the fact that the two parcels were granted by a common grantor at the same time in 1925 should have alerted the examiner to look at the adjacent parcel while conducting due diligence. If that had been done, then the examiner would have uncovered the other, reciprocal easement also issued in 1925, shortly after the sale of the property and would have seen the “in common” language. This was sufficient, in his view, to put him or her on inquiry to conduct a further investigation.

“Normally a purchaser is not required to search outside the chain of its own title in order to determine an easement.” Winson v. Coffin, 2010 NY Misc. LEXIS 1923 at 10 (Sup. Ct. New York Co. 2010). “A grantor of land takes title subject to duly recorded easements that have been granted by his or her predecessors-in-title as well as to unrecorded easements of which he or she has actual or constructive notice.” Id. (citing Breakers Motel v. Sunbeach Montauk Two, 224 AD2d 473 (2d Dept. 1996)(emphasis added). Purchasers (and their title examiners) “are legally bound to search only within their own tree trunk line and are bound by constructive or inquiry notice only of restrictions which appear in deeds or other instruments of conveyance in that primary stem. Property law principles and practice have long established that a deed conveyed by a common grantor to a dominant landowner does not form part of the chain of title to the servient land retained by the common grantor.” Witter v. Taggart, 78 NY2d 234, 239 (1991). To the point raised by Ms. Casey, “[a] grantor may effectively extinguish or terminate [an encumbrance] when, as here, the grantor conveys retained servient land to a bona fide purchaser who takes title without actual or constructive notice of the covenant because the grantor and dominant owner failed to record the covenant in the servient land's chain of title.” Id. (brackets added).

Besides Mr. Lynch's testimony in which he stated in essence that Defendant's due diligence in reaching her title history was lacking, Plaintiff notes that Defendant had been given additional constructive and actual notice of the easement's existence. Both parties agree that Plaintiff's residence has two doors facing the area in dispute that access Plaintiff's property and both agree that Plaintiff and/or his tenants have used these doors for ingress and egress of the dwelling located on Plaintiff's property. Defendant's initial testimony that she never saw anyone traversing the strip of land at issue was contradicted by her own testimony on cross-examination that she had seen people use the side doors for ingress and egress. Prior to the purchase of the property, Defendant said she came to the property two or three times. Undoubtedly, she saw the two doors of the other home facing the property on a narrow strip of land and the Court finds it difficult to believe that Defendant never saw any one entering or existing those doors during her visits, but even if that were the case, the doors' location and proximity to the property she was looking to purchase should have raised questions as to how that land was used.

In fact, that appears to be exactly what happened. Defendant denied that the prior owners of the property, the Gralls, informed her and her husband about the easement and wavered on whether she had seen Ms. Grall before the closing, at one point saying no but then saying she did not remember. This was in face of testimony from Ms. Grall that Defendant and her husband did a final walk-through of the property the night before closing and asked what the story was with the land in dispute. This makes sense, that a prospective owner would ask the existing owner what the situation was with a narrow 10-foot strip of land between two homes, where the other adjacent dwelling had exterior doors facing that strip of land. Ms. Grall, who has no apparent skin in this game, clearly and definitively testified that she told them about the easement and how nothing could be constructed there when they inquired. Ultimately, in determining whether Defendant was given notice of the easement, this Court cannot credit much of Defendant's testimony in this action; it was riddled with inconsistencies and misstatements, and was ultimately self-serving. By contrast, Plaintiff was forthcoming in his testimony and the Court credits his testimony, as well as that of his disinterested witness, Ms. Grall. Because this Court had the “opportunity to view the demeanor of the witnesses at the trial and was in the best position to gauge their credibility. Its resolution of credibility issues is entitled to great deference on appeal.” Levine v. Levine, 37 AD3d 550, 551-552 (2d Dept. 2007). The Court concludes that based upon this record, Defendant had both actual and constructive notice of the easement prior to her purchase of the land in 2007. Thus, Plaintiff has met his burden of proof in establishing that he is entitled to a declaratory judgment that the written easement of 1925 filed in 2023 is in full force and effect.

Given this conclusion, the Court need not reach a conclusion regarding the Plaintiff's second cause of action seeking a declaratory judgment that he has a prescriptive easement.

The third cause of action seeking an order directing Defendant to remove the fence from the easement is moot, as the prior jurist already directed this relief on a temporary basis. Defendant eventually complied with this order, albeit not timely, which caused her to incur sanctions for her delay.

The Court grants Plaintiff's application for a permanent injunction, his fourth cause of action. Defendant has a history of violations in that she was ordered by this Court to remove the fence and eventually complied with that order. She was directed by the Town of Stony Point to remove the air conditioning unit as it violated the easement. Given her history of violations, the Court directs the Defendant to keep the easement free of any encumbrances, obstructions or structures, including but not limited to, fencing, and mandates that Plaintiff have unobstructed, unlimited access to the easement property and hereby enjoins Defendant, or her agent, from directly or indirectly disturbing or interfering with Plaintiff's quiet enjoyment of the easement property.

Both parties seek an award of costs and fees from the other party. Plaintiff has prevailed in this action; however, “[t]he general rule in New York is that litigants are required to absorb their own counsel fees and litigation costs unless there is a contractual or statutory basis for imposing them.” Perry v. Edwards, 147 AD3d 1408, 1409 (4th Dept. 2017)(brackets added). Neither party cited a statutory basis upon which this Court is empowered to award fees in this type of action, and unlike a foreclosure case that is predicated upon a contractual obligation and generally entitles the mortgage holder to seek counsel fees in the event of default, there is no contract between these parties. The only exception to this rule is when fees are sought for frivolous conduct pursuant to 22 NYCRR 130-1.1, but no frivolous conduct was alleged or demonstrated during this proceeding, except for Defendant's conduct in failing to remove the fence immediately pursuant to court order, which was already addressed by imposing a monetary sanction in a prior order. Plaintiff's fifth cause of action and Defendant's first counterclaim are hereby denied.

All requests for relief raised at trial, or by motion referred to at trial, which are not explicitly addressed herein are denied.

Now, therefore it is hereby

ORDERED Plaintiff's first cause of action seeking declaratory judgment in favor of Plaintiff that the written easement of 1925 filed in 2023 is in full force and effect is granted; and it is further

ORDERED that Plaintiff's second cause of action seeking a declaratory judgment that he has a prescriptive easement is denied as moot; and it is further

ORDERED that Plaintiff's third cause of action seeking an order directing Defendant to remove the fence from the easement is denied as moot; and it is further

ORDERED that Plaintiff's fourth cause of action for a permanent injunction is granted and Defendant is directed to keep the easement free of any encumbrances, obstructions or structures, including but not limited to, fencing, and mandates that Plaintiff have unobstructed, unlimited access to the easement property and hereby enjoins Defendant, or her agent, from directly or indirectly disturbing or interfering with Plaintiff's quiet enjoyment of the easement property; and it is further

ORDERED that Plaintiff's fifth cause of action and Defendant's counterclaim for counsel fees is hereby denied.

This shall constitute the Decision and Order of this Court.

FOOTNOTES

1.   The May 6, 1925 written easement was in favor of Plaintiff's predecessor, John Goller (whose family later changed their last name to Gooler), and against James Grall, the predecessor of the Richard Grall and his wife Linda Grall, the former owners of the Defendant's property who sold the property to Defendant in 2007.

2.   There were two written easements dated May 6, 1925, conveying identical rights between two parties, John Goller, residing at what is now 93 Grassy Point Road and James Grall, residing at what is now 91 Grassy Point Road, for the narrow patch of land between their dwellings.

3.   Defendant objected to Ms. Grall's testimony, as Plaintiff noticed Defendant only one day before the trial that she was being added to the witness list in violation of this Court's Part Rules. Defendant argued that it was unfair surprise, but the Court overruled his objection. She is a fact witness, not an expert, so the Court concluded there was no prejudice to Defendant. If Defendant had asked for a continuance of the trial to produce a witness to offer contradicting testimony to Ms. Grall, the Court would have granted that request, but no such application was made.

4.   That testimony was curious, given Defendant's statements on cross-examination that she did not use the strip as a driveway and never parked her car there. She stated that her son-in-law parked the car in that strip once when he dropped off his child, but other than that, it was not utilized for those purposes and she denied that Plaintiff ever came to speak to her about a car.

Rachel E. Tanguay, J.