ZWICKEL v. UNDERHILL LAND LLC (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Sharon Graff, J.), entered September 23, 2024 in Greene County, which partially denied a motion by defendants Underhill Land LLC and Underhill RE Holding LLC to vacate the preliminary injunction.

The underlying facts of this case are familiar to this Court, being the third time we have had occasion to consider an appeal arising from this dispute (see 243 A.D.3d 973, 245 N.Y.S.3d 444 [3d Dept. 2025];  237 A.D.3d 1455, 233 N.Y.S.3d 794 [3d Dept. 2025]).  Briefly, plaintiffs are trustees of a family trust that owns a parcel of real property in the Town of Catskill, Greene County (hereinafter the Zwickel property).  Defendants are developers who acquired a parcel of real property containing a four-lot subdivision in 2022, the majority of which lies north of the Zwickel property.¹  Although the western boundaries of both properties run along Underhill Road, defendants' property has limited access to this public road due the topography of the adjacent terrain.  A narrow, triangular strip of defendants' property extends between Underhill Road and a portion of the Zwickel property.  This strip of land contains an old wagon road (hereinafter the subject road), which originates at Underhill Road and proceeds northeast along the parties' property line, avoiding the challenging topography and providing access to the remaining lots on defendants' property.  As part of their residential development plan, defendants began work to improve the subject road to make it suitable for vehicular travel.

In March 2023, plaintiffs commenced this action alleging that the work associated with the subject road constituted a trespass on their property and caused them damages.  Plaintiffs simultaneously moved by order to show cause to enjoin defendants from, among other things, encroaching on the Zwickel property and performing work on or along the subject road.  Supreme Court, in the relevant part, granted a preliminary injunction enjoining defendants from entering upon or making roadway improvements that encroached on the Zwickel property.  Supreme Court then set an undertaking in the amount of $2,500, reasoning that defendants were still able to access their land and continue construction on their lots despite the injunction.  In doing so, Supreme Court granted defendants leave to seek modification of the undertaking if they were unable to obtain certificates of occupancy due to inadequate access arising from the preliminary injunction.  This Court affirmed the orders granting the preliminary injunction and the undertaking (243 A.D.3d at 976, 245 N.Y.S.3d 444).

Thereafter, the Town of Catskill denied defendants the certificates of occupancy associated with their subdivided lots due to the inadequacy of the subject road.  Defendants moved to vacate or modify the preliminary injunction, seeking to increase the undertaking to $1 million.  Plaintiffs submitted opposition, and Supreme Court held a conference on the motion, permitting supplemental submissions addressing defendants' likelihood of success on their easement counterclaims.  Ultimately, Supreme Court declined to vacate the preliminary injunction but, based on an estimated cost to construct an alternate roadway by one of defendants' principals, substantially increased the undertaking to $165,000.  Defendants appeal.

We affirm.  CPLR 6314 permits a defendant enjoined by a preliminary injunction to move at any time to vacate or modify it or the associated undertaking (see generally Hofstra Univ. v. Nassau County, N.Y., 166 A.D.3d 863, 866, 87 N.Y.S.3d 248 [2d Dept. 2018]).  The determination whether to vacate or modify a preliminary injunction or the undertaking “is addressed to the sound discretion of the court and may be granted either upon compelling or changed circumstances that render continuation of the injunction inequitable or upon failure to proceed expeditiously” (Matter of New York State Off. of Victim Servs. v. Blue, 240 A.D.3d 1064, 1065, 238 N.Y.S.3d 779 [3d Dept. 2025] [internal quotation marks and citations omitted], appeal dismissed 44 N.Y.3d 1035, 247 N.Y.S.3d 688, 273 N.E.3d 924 [2025]).

Defendants failed to demonstrate that Supreme Court improvidently exercised its discretion in declining to vacate the order granting the preliminary injunction based on their easement counterclaim.  An express easement appurtenant “is created through a written conveyance, subscribed by the grantors, that burdens the servient estate for the benefit of the dominant estate” (Gugino v. Scripa, 228 A.D.3d 1112, 1113, 214 N.Y.S.3d 492 [3d Dept. 2024] [internal quotation marks and citations omitted];  see Northwood Sch., Inc. v. Fletcher, 190 A.D.3d 1136, 1138, 140 N.Y.S.3d 297 [3d Dept. 2021]).  Whereas an implied easement requires “(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land” (Biles v. Whisher, 160 A.D.3d 1159, 1160, 75 N.Y.S.3d 301 [3d Dept. 2018] [internal quotation marks and citations omitted];  see LaBarge v. MJB Lake LLC, 220 A.D.3d 1100, 1102, 198 N.Y.S.3d 799 [3d Dept. 2023]).  “A party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” (Sardino v. Scholet Family Irrevocable Trust, 238 A.D.3d 1289, 1292, 234 N.Y.S.3d 645 [3d Dept. 2025] [internal quotation marks and citations omitted], lv denied 44 N.Y.3d 909, 2026 WL 59863 [2026]).  Concerning public highways, “once a road becomes a public highway, it is presumed to continue until it is shown to exist no longer” (Curtis v. Town of Galway, 50 A.D.3d 1370, 1371, 858 N.Y.S.2d 394 [3d Dept. 2008] [internal quotation marks and citation omitted]).

In support of their motion to vacate the preliminary injunction, defendants relied on a 1911 deed granting a right-of-way across lands west of the Zwickel property as evidence of an express easement.  However, that deed was between two sets of former owners of certain portions of defendants' property, and not the owner of the Zwickel property – who was not a party to that transaction – and therefore defendants' predecessor in title could not have gained a right-of-way over the Zwickel property (see Simone v. Heidelberg, 9 N.Y.3d 177, 182, 847 N.Y.S.2d 511, 877 N.E.2d 1288 [2007];  see also McColgan v. Brewer, 84 A.D.3d 1573, 1574, 923 N.Y.S.2d 276 [3d Dept. 2011]).  Defendants next contend that a 1906 severance of a larger property – the resulting southern half being the Zwickel property and the northern half forming the portion of defendants' property to the north – created an implied easement.  It is undisputed that there was both unity and a subsequent severance in title, however, defendants presented no evidence of obvious use that was meant to become permanent before the severance or the necessity of an easement at the time (see Beretz v. Diehl, 302 A.D.2d 808, 810, 755 N.Y.S.2d 122 [3d Dept. 2003];  U.S. Cablevision Corp. v. Theodoreu, 192 A.D.2d 835, 838, 596 N.Y.S.2d 485 [3d Dept. 1993];  compare Thomas Gang, Inc. v. State of New York, 19 A.D.3d 861, 862, 797 N.Y.S.2d 583 [3d Dept. 2005]).  As to the existence of a prescriptive easement, although there is mention in the 1911 deed of the open use of the subject road by defendant's predecessor in interest, there is no evidence of specific dates and times of said use and whether that use was continuous and uninterrupted for the requisite period (see Weir v. Gibbs, 46 A.D.3d 1192, 1193–1194, 849 N.Y.S.2d 97 [3d Dept. 2007];  Alexy v. Salvador, 217 A.D.2d 877, 879, 630 N.Y.S.2d 133 [3d Dept. 1995];  compare Auswin Realty Corp. v. Klondike Ventures, Inc., 163 A.D.3d 1107, 1109–1110, 81 N.Y.S.3d 278 [3d Dept. 2018]).  Moreover, as it relates to each of defendants' easement claims, the record is at best inconclusive as to the road's character as a public highway.  Critically, the 1911 deed references Underhill Road as a “public highway” but, in the same sentence, refers to the subject road as “an old highway,” omitting the word “public.”  Based on the foregoing, we cannot say that defendants established that the subject road was a public highway so as to warrant vacatur of the preliminary injunction (see Beretz v. Diehl, 302 A.D.2d at 810, 755 N.Y.S.2d 122;  compare Petti v. Town of Lexington, 92 A.D.3d 1111, 1113, 939 N.Y.S.2d 144 [3d Dept. 2012];  Curtis v. Town of Galway, 50 A.D.3d at 1371–1372, 858 N.Y.S.2d 394).

Next, defendants contend that Supreme Court abused its discretion when it declined to increase the undertaking to $1 million.  We disagree.  The amount of an undertaking “must not be based upon speculation and must be rationally related to the damages the defendants might suffer if the court later determines that the relief to which the undertaking relates should not have been granted” (572 Walt Whitman Rd. Holdings, LLC v. Whitman Capital, LLC, 237 A.D.3d 878, 883, 232 N.Y.S.3d 527 [2d Dept. 2025] [internal quotation marks and citation omitted]).  “The fixing of the amount of an undertaking is a matter within the sound discretion of the Supreme Court, and its determination will not be disturbed absent an improvident exercise of that discretion” (Tahmin v. Interlaken Owners, Inc., 228 A.D.3d 983, 985, 215 N.Y.S.3d 359 [2d Dept. 2024] [internal quotation marks and citation omitted];  see Darwish Auto Group, LLC v. TD Bank, N.A., 224 A.D.3d 1115, 1119, 206 N.Y.S.3d 736 [3d Dept. 2024]).  To support their claim that the undertaking should have been set at a minimum of $1 million, defendants submitted an affidavit of its principal asserting a constellation of damages associated with the preliminary injunction.  Such affidavit was couched in terms of conclusory and speculative events, including allegations based on losses defendants could “potentially” incur, that they “probably will have to litigate” with nonparty neighbors or the unavailability of financing due to market forces impacting real estate loans.  Given this lack of support – particularly for such a significant increase – defendants “failed to establish the existence of compelling or changed circumstances that render continuation of the injunction inequitable” without a $1 million undertaking (Matter of National Fuel Gas Distrib. Corp. v. City of Jamestown, 108 A.D.3d 1045, 1047, 969 N.Y.S.2d 646 [4th Dept. 2013] [internal quotation marks and citation omitted]).  Accordingly, we perceive no abuse of discretion by Supreme Court in the amount it ultimately fixed (see Matter of New York State Off. of Victim Servs. v. Blue, 240 A.D.3d at 1066, 238 N.Y.S.3d 779;  255 Butler Assoc., LLC v. 255 Butler, LLC, 208 A.D.3d 829, 831, 173 N.Y.S.3d 669 [2d Dept. 2022];  456 Johnson, LLC v. Maki Realty Corp., 177 A.D.3d 829, 830, 112 N.Y.S.3d 262 [2d Dept. 2019]).

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Lot 1 was subsequently sold to a codefendant.

Fisher, J.

Garry, P.J., Ceresia, McShan and Mackey, JJ., concur.