STEVENS v. GRODY

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

Matthew STEVENS, et al., Appellants, v. Allan D. GRODY, et al., Respondents.

Decided: August 26, 2002

MYRIAM J. ALTMAN, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, and BARRY A. COZIER, JJ. Agovino & Asselta, LLP, Mineola, N.Y. (Peter L. Agovino and Todd R. Drummer of counsel), for appellants. Foster & Vandenburgh, LLP, Westhampton, N.Y. (Stanley E. Gelzinis and Frederic C. Foster of counsel), for respondents.

In an action pursuant to RPAPL article 15 to terminate and cancel an easement over certain property, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated May 21, 2001, which denied their motion pursuant to CPLR 3124 to compel the defendants to submit to examinations before trial, and granted those branches of the defendants' motion which were for summary judgment dismissing the complaint and to cancel a notice of pendency filed by the plaintiffs on the subject property.

ORDERED that the order is reversed, on the law, with costs, the plaintiffs' motion to compel the defendants to submit to examinations before trial is granted, the defendants' motion for summary judgment is denied, with leave to renew upon the completion of disclosure, and the complaint and the notice of pendency are reinstated.

The plaintiffs commenced this action to terminate and cancel an easement in favor of the defendants based on the defendants' alleged violations of the express terms of a grant of easement.   The grant of easement permitted the defendants, their tenants, their immediate families, and their house guests to access and use a boating facility located on the plaintiffs' property.   The grant of easement also required the defendants to obtain casualty and liability insurance “in an amount equivalent to one thousand times the tax imposed on the land for the current tax year.”   It is undisputed that the tax imposed upon the defendants' property, without improvements, was $2,869.84, thereby requiring the defendants to secure a policy in the amount of at least $2,869,840 in coverage.

The plaintiffs moved, pursuant to CPLR 3124, to compel the defendants to submit to an examination before trial.   Subsequently, the defendants moved, inter alia, for summary judgment dismissing the complaint.

In opposition to the motion, the plaintiffs asserted that the defendants violated the terms of the easement because they obtained a liability policy with coverage limits of $1,000,000 per occurrence and a general aggregate policy limit of $3,000,000, and purchased the insurance from an unlicensed foreign insurance company which was not authorized to conduct business in the State of New York. The plaintiffs further maintained that the defendants violated the terms of the easement by permitting their friends to permanently use the boat dock.

The Supreme Court, inter alia, denied the plaintiffs' motion to compel the defendants to appear for depositions, and granted the defendants' motion for summary judgment dismissing the complaint.   The Supreme Court found that the defendants procured an appropriate amount of insurance coverage, and that the persons who the defendants permitted to use the boating facility fell within the definition of house guests, as contemplated by the grant of easement.

 An easement by express grant is construed to give effect to the parties' intent, as manifested by the language of the grant (see Dowd v. Ahr, 78 N.Y.2d 469, 473, 577 N.Y.S.2d 198, 583 N.E.2d 911;  Perillo v. Credendino, 264 A.D.2d 473, 694 N.Y.S.2d 698;  Mandia v. King Lbr. & Plywood Co., 179 A.D.2d 150, 583 N.Y.S.2d 5).  “The extent of an easement claimed under a grant is generally determined by the language of the grant [and] the terms of [such] are to be construed most strongly against the grantor in ascertaining the extent of the easement” (Mandia v. King Lbr. & Plywood Co., supra at 158, 583 N.Y.S.2d 5).

 Contrary to the plaintiffs' contention, the defendants complied with the requirement of the easement with respect to insurance by obtaining a casualty and liability policy with coverage in the aggregate amount of $ 3,000,000.   The grant of easement did not require a specific amount of coverage per occurrence, or that the defendants select an insurance company authorized to do business in the State of New York.

 The language of the grant of easement, which was clear and unambiguous, failed to include a definition of the term “house guest.”   However, the Supreme Court erred in granting that branch of the defendants' motion which was for summary judgment dismissing the complaint, since the conflicting proof submitted by the parties raised a genuine issue of fact as to whether the defendants' friends were house guests rather than permanent seasonal users of the subject boat dock (see CPLR 3212[b];  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Gold v. Berkowitz, 235 A.D.2d 455, 652 N.Y.S.2d 992;  Milhim v. Almo Realty Corp., 188 A.D.2d 450, 592 N.Y.S.2d 594).

Moreover, that branch of the defendants' motion which was for summary judgment dismissing the complaint should have been denied because the issue of whether the defendants' friends used the boat dock as house guests or as permanent seasonal users was within the exclusive knowledge of the defendants, and no discovery had taken place (see CPLR 3212[f];  Firesearch Corp. v. Micro Computer Controls Corp., 240 A.D.2d 365, 366, 658 N.Y.S.2d 110;  Urcan v. Cocarelli, 234 A.D.2d 537, 651 N.Y.S.2d 611;  Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 793, 533 N.Y.S.2d 143).

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