KUITERS v. KUKULKA

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Supreme Court, Appellate Division, Fourth Department, New York.

Richard G. KUITERS, Mary E. Kuiters, Linda Lewis, Bruce J. Abbey and Linda R. Abbey, Plaintiffs-Respondents, v. David KUKULKA, Lizabeth Kukulka, Defendants-Appellants, et al., Defendants.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, PERADOTTO, AND GREEN, JJ. Fix Spindelman Brovitz & Goldman, P.C., Fairport (Roy Z. Rotenberg of Counsel), for Defendants-Appellants. Donald R. Gerace, Utica, for Plaintiffs-Respondents.

 Plaintiffs commenced this action seeking monetary and injunctive relief based, inter alia, upon defendants' alleged interference with plaintiffs' express easement of ingress and egress over property owned by David Kukulka and Lizabeth Kukulka (defendants).   Those defendants moved for summary judgment dismissing the amended complaint against them, and we conclude that Supreme Court properly denied those parts of their motion with respect to the first, fourth and seventh causes of action.   Defendants failed to meet their initial burden of establishing as a matter of law that their use of the property has not unreasonably interfered with plaintiffs' use of the easement (see Martone v. Prislupsky, 269 A.D.2d 673, 675, 705 N.Y.S.2d 83) and, although they contended in support of the motion that those causes of action are time-barred, they failed to meet their initial burden in that respect as well.   Defendants have not raised on appeal any specific challenges to the order insofar as it denied those parts of their motion with respect to the fifth and sixth causes of action and thus are deemed to have abandoned any such challenges (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 609 N.Y.S.2d 745).

 We agree with defendants, however, that the court erred in denying that part of their motion with respect to the second cause of action, in which plaintiffs allege that defendants violated the Zoning Ordinance of the Town of Webb (Town) by constructing and maintaining a dock on their property.   It is undisputed that, during the pendency of this action, the Town granted defendants' application for a variance with respect to the dock.   The court further erred in denying that part of defendants' motion with respect to the third cause of action, alleging fraud.   The allegedly fraudulent misrepresentations were not made to plaintiffs, and plaintiffs thus lack standing to assert a fraud cause of action against defendants (see Aymes v. Gateway Demolition Inc., 30 A.D.3d 196, 197, 817 N.Y.S.2d 233;  Pensee Assoc. v. Quon Indus., 241 A.D.2d 354, 360, 660 N.Y.S.2d 563).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the second cause of action and the third cause of action against defendants David Kukulka and Lizabeth Kukulka and as modified the order is affirmed without costs.

MEMORANDUM: