Preview
FILED: JEFFERSON COUNTY CLERK 08/15/2019 02:33 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/15/2019
SUPREME COURT
STATE OF NEW YORK COUNTY OF JEFFERSON
KENNETH MILLER,
Plaintiff, PLAINTIFF'S MEMORANDUM
OF LAW
v. Index No.: EF2018-00001369
Justice: Hon. James P. McClusky
CHARLES PETER HUNKELE, JR., and Return Date: 8/22/19
DAVID STROTHERS
Defendants.
POINT I
PLAINTIFF'S EASEMENT WAS ESTABLISHED BY THE DEED
Plaintiff's easement was granted by the language contained in the deed to Plaintiff's Parents.
Whether an easement is appurtenant or merely a personal, non-inheritable and non-assignable
right depends upon the intent of the parties to the instrument in which the right-of-way was granted
(see Loch Sheldrake Assocs. v. Evans, 306 N.Y. 297, 304, 118 N.E.2d 444). In making such a
determination, the courts look to the language of the grant (see, Wilson v. Ford, 209 N.Y.186, 196,
102 N.E. 614; Stratis v. Doyle, 176 A.D. 2d 1096, 1098, 575 N.Y. S. 2d 400 ; Phillips v. Jacobsen,
117 A.D. 2d 785, 786, 499 N.Y.S. 2d 428) and, where necessary, the construction of such grant may
be aided by looking to the surrounding circumstances (see, Lock Sheldrake Assocs. v. Evans, supra,
at 304, 118 N.E.2d 444; Wilson v. Ford, supra, et 196, 102 N.E. 614; Phillips v. Jacobsen, supra, at
786, 499 N.Y.S.2d 428).
Where the grant of a right-of-way was accomplished by a deed, that indicates the transfer was
of an interest in real property (Evans v. Taraszkiewicz, 125 A.D.2d 884, 885, 510 N.Y.S.2d 243; see
Stratis v. Doyle, supra, at 1097, 575 N.Y.S.2d 400). (see, Greenwood Lake & Port Jervis R.R. Co. v.
New York & Greenwood Lake R.R. Co., 134 N.Y. 435, 441, 31 N.E. 874). Language contained in a
"convey"
deed including words, such as "grant", and "forever", and phrases, such as "his heirs and
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assigns", demonstrate that an easement was intended (see, Clements v. Schultz, 200 A.D.2d 11, 13,
612 N.Y.S.2d 726 ; Stratis v. Doyle, supra, at 1097, 575 N.Y.S.2d 400; Evans v. Taraszkiewicz, supra,
at 885, 510 N.Y.S.2d 243).
"grant"
The language used, including the words and "convey", indicates that an easement was
intended (see Yager Pontiac v. Fred A. Danke & Sons, 41 A.D.2d 366, 368 N.Y.S. 2d 209, affd. 34
N.Y.2d 707, 356 N.Y.S.2d 860, 313 N.E.2d 340).
When these rules are applied to the deed and survey given to Plaintiff's parents they establish
that an easement was granted. The rights were set forth in a deed which indicates the transfer of an
interest in real property. The deed used the words grant and convey and indicated that the rights were
granted to the grantees, heirs and assigns forever. Also, the deed repeatedly stated that it was
excepting and reserving to the grantees these rights. Thus, the rules set forth above clearly indicate
that the rights transferred were an easement.
It is also important to note that the language did not indicate that the easement was personal
to the Millers. There were no words that indicated that it would terminate upon sale. Instead, the
grantor intended the rights to benefit multiple parcels which would were to be sold.
POINT II
THE SURROUNDING CIRCUMSTANCES ALSO INDICATE THAT AN EASEMENT
WAS GIVEN
There are multiple surrounding facts which also indicate that an easement was intended. The
testimony of Mr. Ellinger stated that he discussed the matter several times with Mr. Miller, the
grantee, who indicated that he had a permanent right of access to the water and to the recreational
area.
The grantor thereafter transferred the property to the Trust and that transfer indicated that it
was subject to the same rights. Accordingly, there can be no claim that the grantor terminated the
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rights in question.
The wording subject to sale simply indicates that the deed was prepared in 1984 prior to the
sale of the property which occurred thereafter in 1985. In addition, as mentioned above, other parties
also had rights. Plaintiff's use of the property would be subject to the rights of others.
The evidence establishes that the Plaintiff and Plaintiff's family used the property for decades.
The Plaintiff's father was given a survey showing the rights in question and the Plaintiff's family
thereafter used the property without problems.
It was only after the buyers started requesting that the rights be removed that this became a
question. Mr. Harvey clearly stated that he was seeking a written release of the rights. However, no
Hunkeles'
such written release was granted. Prior to the lawsuit, the attorney for the admitted that
there was a recreational easement on the property.
Thus, the surrounding circumstances indicate that the deed in question transferred an
easement.
CONCLUSION
The language of the deed and supporting surrounding circumstances clearly indicate that the
Defendants'
deed created an easement and as such the Plaintiff was entitled to an order dismissing the
Motions for Summary Judgment.
Dated: August 1, 2019 Respectfully submitted,
avi Doherty on kfiäff of
omas P. Givas, Esq.
Pappas, Cox, Kimpel, Dodd & Levine, P.C.
Attorneys for Defendant
614 James Street, Suite 100
Syracuse, New York 13203
Telephone: (315) 472-4481
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Preview
FILED: JEFFERSON COUNTY CLERK 08/15/2019 02:33 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/15/2019 SUPREME COURT STATE OF NEW YORK COUNTY OF JEFFERSON KENNETH MILLER, Plaintiff, PLAINTIFF'S MEMORANDUM OF LAW v. Index No.: EF2018-00001369 Justice: Hon. James P. McClusky CHARLES PETER HUNKELE, JR., and Return Date: 8/22/19 DAVID STROTHERS Defendants. POINT I PLAINTIFF'S EASEMENT WAS ESTABLISHED BY THE DEED Plaintiff's easement was granted by the language contained in the deed to Plaintiff's Parents. Whether an easement is appurtenant or merely a personal, non-inheritable and non-assignable right depends upon the intent of the parties to the instrument in which the right-of-way was granted (see Loch Sheldrake Assocs. v. Evans, 306 N.Y. 297, 304, 118 N.E.2d 444). In making such a determination, the courts look to the language of the grant (see, Wilson v. Ford, 209 N.Y.186, 196, 102 N.E. 614; Stratis v. Doyle, 176 A.D. 2d 1096, 1098, 575 N.Y. S. 2d 400 ; Phillips v. Jacobsen, 117 A.D. 2d 785, 786, 499 N.Y.S. 2d 428) and, where necessary, the construction of such grant may be aided by looking to the surrounding circumstances (see, Lock Sheldrake Assocs. v. Evans, supra, at 304, 118 N.E.2d 444; Wilson v. Ford, supra, et 196, 102 N.E. 614; Phillips v. Jacobsen, supra, at 786, 499 N.Y.S.2d 428). Where the grant of a right-of-way was accomplished by a deed, that indicates the transfer was of an interest in real property (Evans v. Taraszkiewicz, 125 A.D.2d 884, 885, 510 N.Y.S.2d 243; see Stratis v. Doyle, supra, at 1097, 575 N.Y.S.2d 400). (see, Greenwood Lake & Port Jervis R.R. Co. v. New York & Greenwood Lake R.R. Co., 134 N.Y. 435, 441, 31 N.E. 874). Language contained in a "convey" deed including words, such as "grant", and "forever", and phrases, such as "his heirs and 1 of 3 FILED: JEFFERSON COUNTY CLERK 08/15/2019 02:33 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/15/2019 assigns", demonstrate that an easement was intended (see, Clements v. Schultz, 200 A.D.2d 11, 13, 612 N.Y.S.2d 726 ; Stratis v. Doyle, supra, at 1097, 575 N.Y.S.2d 400; Evans v. Taraszkiewicz, supra, at 885, 510 N.Y.S.2d 243). "grant" The language used, including the words and "convey", indicates that an easement was intended (see Yager Pontiac v. Fred A. Danke & Sons, 41 A.D.2d 366, 368 N.Y.S. 2d 209, affd. 34 N.Y.2d 707, 356 N.Y.S.2d 860, 313 N.E.2d 340). When these rules are applied to the deed and survey given to Plaintiff's parents they establish that an easement was granted. The rights were set forth in a deed which indicates the transfer of an interest in real property. The deed used the words grant and convey and indicated that the rights were granted to the grantees, heirs and assigns forever. Also, the deed repeatedly stated that it was excepting and reserving to the grantees these rights. Thus, the rules set forth above clearly indicate that the rights transferred were an easement. It is also important to note that the language did not indicate that the easement was personal to the Millers. There were no words that indicated that it would terminate upon sale. Instead, the grantor intended the rights to benefit multiple parcels which would were to be sold. POINT II THE SURROUNDING CIRCUMSTANCES ALSO INDICATE THAT AN EASEMENT WAS GIVEN There are multiple surrounding facts which also indicate that an easement was intended. The testimony of Mr. Ellinger stated that he discussed the matter several times with Mr. Miller, the grantee, who indicated that he had a permanent right of access to the water and to the recreational area. The grantor thereafter transferred the property to the Trust and that transfer indicated that it was subject to the same rights. Accordingly, there can be no claim that the grantor terminated the 2 2 of 3 FILED: JEFFERSON COUNTY CLERK 08/15/2019 02:33 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 08/15/2019 rights in question. The wording subject to sale simply indicates that the deed was prepared in 1984 prior to the sale of the property which occurred thereafter in 1985. In addition, as mentioned above, other parties also had rights. Plaintiff's use of the property would be subject to the rights of others. The evidence establishes that the Plaintiff and Plaintiff's family used the property for decades. The Plaintiff's father was given a survey showing the rights in question and the Plaintiff's family thereafter used the property without problems. It was only after the buyers started requesting that the rights be removed that this became a question. Mr. Harvey clearly stated that he was seeking a written release of the rights. However, no Hunkeles' such written release was granted. Prior to the lawsuit, the attorney for the admitted that there was a recreational easement on the property. Thus, the surrounding circumstances indicate that the deed in question transferred an easement. CONCLUSION The language of the deed and supporting surrounding circumstances clearly indicate that the Defendants' deed created an easement and as such the Plaintiff was entitled to an order dismissing the Motions for Summary Judgment. Dated: August 1, 2019 Respectfully submitted, avi Doherty on kfiäff of omas P. Givas, Esq. Pappas, Cox, Kimpel, Dodd & Levine, P.C. Attorneys for Defendant 614 James Street, Suite 100 Syracuse, New York 13203 Telephone: (315) 472-4481 3 3 of 3