[*1]
Sullivan v Mains
2009 NY Slip Op 50796(U) [23 Misc 3d 1117(A)]
Decided on April 26, 2009
Rochester City Ct
Morse, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 26, 2009
Rochester City Ct


Gail Sullivan, Plaintiff,

against

Tim O. Mains, Defendant.




08-SC-21870



James D'Anza., Esq. (Counsel for the Defendant)

Thomas Rainbow Morse, J.



This court has conducted a small claims proceeding in the above matter and has taken sworn testimony regarding the plaintiff Sullivan' claim for compensation for damage to a driveway entrance gate allegedly caused by the defendant Mains. While there are some inconsistencies in the testimony of the parties, the resloution of the issue before the court does not hinge on credibility of the witnesses.[FN1] Rather, for the reasons which follow, under New York law the uncontested facts preclude the judgment Ms. Sullivan seeks.

Facts

For a number of years, the parties have lived next to each other on land just east of Durand Eastman Beach in the "Highlands." The property upon which their homes are located was once a single parcel which was subdivided by a former owner. The subdivision appears to have taken place in 1990, well before either of the parties relocated there. Mr. Mains' purchased the lakeside lot (#2) and Ms. Sullivan bought the lot which abuts Lakeshore Boulevard(#1). Street access to lot two was guaranteed by one of two easements both parties acknowledge were [*2]set forth in the deeds to the land they purchased.[FN2] The one at issue here memorialized "[a]n easement for ingress and egress across the premises...to an outlet gate at or near the southeast corner of said premises." [FN3] The second page of the deed makes it clear that Ms. Sullivan's property rights were subject to "easements, covenants, restrictions of record in the Monroe County Clerk's Office affecting said premises." [FN4] The testimony of both parties, the photographs and documents before this court all support the undisputed conclusion that the gate which was allegedly damaged by Mr. Mains lies wholly within this easement.

Since both parties acknowledge the pre-existing easement for access to Lakeshore Boulevard, the court finds it is immaterial whether any damage to the entrance gate was caused by Mr. Mains on June 19, 2007. While the Court makes no such specific factual determination, it will assume for the purposes of discussion that all of the damage described by Ms. Sullivan and her witness is attributable solely to the actions of Mr. Mains that evening. [FN5] Accordingly, the court will assume that when Mr. Mains returned home on June 19th he discovered that power to the property was out and the gate to the street was closed and that he pushed the gate open far enough to get his body, but not his car, through the opening.

The photos before the court illustrate a two-panel gate the sides of which meet in the middle and swing out towards stone pillars to which they are hinged. While these wooden panels are substantial, Ms. Sullivan does not assert any damage to the hinges which support their significant weight. Rather, she complains that Mr. Mains damaged the door opening mechanism. As the court has taken for granted that Mr. Mains pushed open the gate to pass his body through the center opening he created, the court will further assume that in doing so he damaged metal arms and support structures which normally opened and closed the gate used to allow automobile and pedestrian access to both properties. Even if all those facts were found to be true, however, Ms. Sullivan would not be entitled to a judgment in this case because the "damaged" gates and pillars belong just as much to Mr. Mains as they do to Ms. Sullivan. As "tenants in common" they have had and continue to have equal right to the pillars and the gate which were both located on the easement long before either moved in.

[*3]Tenants in Common

While Ms. Sullivan has unilaterally undertaken some gate maintenance responsibilities without seeking suggestions from or financial contribution by Mr. Mains,[FN6] on other occasions they have both reached agreement regarding some aspects of the gated entrance to both their properties. At one point they collectively concluded that instead of removing the gates each winter and storing them under the deck attached to Mr. Mains' house, it would be preferable to install posts along the circumference of the gates' swing to allow the inside edge of each gate panel to be securely tethered in an open position fostering winter snow removal. The posts were neither purchased nor installed by Ms. Sullivan and they are situated within the twenty-five foot easement. In addition, before their "falling-out," both parties also may have undertaken preliminary joint efforts regarding enhancements to the gate. Over the years each has proceeded in accordance with the covenants of their deeds which clearly describe common rights to the gate as part "the easement for ingress and egress."[FN7]

While each of the parties before the court has separate property interests in their homes and much of their real property, it is clear that they purchased their lots with easements which benefitted the owners of each lot and which flowed uninterrupted from the original owner of the subsequently subdivided lakefront parcel. The five foot wide easement on the west side of both properties guaranteed that the owners of the otherwise landlocked lot one would have access to Lake Ontario and its beach. Similarly the twenty-five foot wide easement within which the front gate has been located ensured that the owner of lakefront lot number two enjoyed a driveway with access to Lakeshore Boulevard. While parts of each of these easements transversed land individually owned by Ms. Sullivan and Mr. Mains, it is clear that both bought their properties with the understanding that they had limited rights in common with their neighbor viv-a-vis the easements. As to those easements they are not sole owners. They are "tenants in common."

Under New York law, "[a] tenancy-in-common represents interests in property held individually by two or more persons(generally known as cotenants). The distinguishing feature of this form of ownership is the right of each cotenant to use and enjoy the entire property as would a sole owner." [FN8] While absent an agreement to the contrary co-tenants could be held jointly and severably liable to third parties for injuries sustained by such a third party due to the condition of [*4]co-owned property,[FN9] there is no liability between co-owners for damage to co-owned property unless all the co-owners are named plaintiffs, which is not the case here. [FN10]

As noted recently by the Second Department

The distinguishing characteristic of a tenancy-in-common is the right of each co-tenant to use and enjoy real property as a sole owner of the property, provided that the other co-tenants are not thereby excluded from similar use and enjoyment. A tenant-in-common may therefore bring an ejectment action or a summary proceeding to recover possession of the real property individually, based upon his or her undivided possessory interest. The rights of a tenant-in-common do not extend, however, to suing individually for damages to the common interest. For that, it is necessary that all of the tenants-in- common join in the complaint.[FN11]


Thus, if Ms. Sullivan and Mr. Mains and all other co-owners of lots one and two could agree to do so, they might secure an insurance policy in all their names which would cover damage to the property within the easement as well as damage to individually owned property adjoining the easement caused by conditions within the easement.

Moreover, assuming again for the sake of argument the facts alleged by Ms. Sullivan, it is clear that any acts attributed to Mr. Mains were directed solely at securing the right the easement gave to him: the right to enter and cross property owned by Ms. Sullivan through a gate located on the easement and not to damaging the door itself. Even if this court were to find, which it has not, that one co-tenant could sue another for intentionally damaging co-owned property, there are no facts before the court supporting such intentional conduct.



Conclusion

Each party bought property subject to easements and like it or not "having accepted the deed and taken possession under it is bound by the covenants therein." [FN12] The controversy in this case involving the invisible access easement with its substantial shared entrance gate illustrate [*5]Robert Frost's sage advice that "good fences make good neighbors." [FN13] That proverbial phrase which predates his poem has been said to describe the "irresolvable tension between boundary and hospitality, between demarcation and common space, between individuality and collectivity, and between other conflicting attitudes that separate people from each other, be it as neighbours in a village or as nations." [FN14] This court's decision, however, will not be the last lines written about this contentious relationship. It only brings to a close one chapter in the tale of these two neighbors. Another will be written by a Supreme Court Justice considering separate issues involving reasonable rights to access for the owners of the lakeside lot.

Until that case is decided, however, both parties might do well to remember that "the opposite of love is not hate, it is indifference." [FN15] By focusing on every supposed slight however minor, they are allowing themselves to "rent space in their hearts and minds each day" to pernicious sentiments which squander life's precious moments. In addition, they dampen their enjoyment of the stunning physical setting in which they have chosen to live. In the final analysis, if they are unable to find a way to "go along to get along," it won't matter how many times each brings the other to court, the only lasting solution securing personal psychic peace will be for one or both to move away.

Based upon the legal principles enumerated above, [FN16] consistent with the court's responsibility under UCCA § 1804 "to do substantial justice between the parties according to the rules of substantive law" and consonant with its authority pursuant to UCCA § 1805(a) to "condition the entry of such judgment upon such terms as the court shall deem proper" , it is hereby

HELD that on the record before this court and the law applicable in this proceeding the plaintiff is not entitled to a judgement. And it is further [*6]

ORDERED that the Plaintiff's cause of action is dismissed

The foregoing constitutes the decision and order of the court.

ENTER,

Dated:April 26, 2009_______________________________________

Rochester, New YorkHon. Thomas Rainbow Morse, JCC

cc:

Gail Sullivan

James D'Anza., Esq. (Counsel for the Defendant)

Footnotes


Footnote 1:Prior to proceeding in this case, I informed Ms. Sullivan that I have been acquainted with Mr. Mains as a public figure for a number of years. Moreover, I indicated to her that Mr. Mains appeared in a newspaper campaign advertisement on my behalf when I ran for election as a City Court Judge ten years ago. He was one of a number of public officials who were shown in different ads with me. Furthermore, I let her know that Mr. Mains and I have never socialized with one another other than at political events. I advised her that while I would have no difficulty in ruling against Mr. Mains if I felt it was justified under the facts of this proceeding, I would also have no problem transferring this case to another judge if that was her wish. I then gave her an opportunity to leave the courtroom for a few minutes to consider her options. When she returned, she indicated she wished to proceed before me. Thereafter I swore witnesses, viewed exhibits and heard over an hour of testimony. Ultimately, as noted later in this opinion, concerns about possible bias favoring Mr. Mains were rendered moot by the fact that both parties agreed that the gate in question was present when each bought their homes and at those times was situated wholly within an access easement. Thus, the ruling in this case rests on a question of law, not a question of fact.

Footnote 2:The smaller of the two easements appears to have been created to insure beach access for Lot #1. Sullivan Warranty Deed ¶ 2. However, there was no testimony before this court regarding this easement which is five feet wide and runs north and south along the western most property line of both parcels. Accordingly, only its existence is pertinent to the decision rendered here.

Footnote 3:Sullivan Warranty Deed ¶ 1.

Footnote 4:Sullivan Warranty Deed, page two, second full paragraph. The deed goes on to provide that the property was conveyed "[together with an easement for ingress and egress described as follows: ....Intending to describe a 25.00 feet wide ingress and egress easement in Lot 1 for Lots 1 and 2 of the Turrie Subdivision as shown on an instrument survey dated July 31, 1990...."(the one-hundred fifty-one word surveyor's description of the area is not relevant to this court's decision and has been omitted).

Footnote 5:Were this court resolving inconsistencies in the proof, the photographs of the portion of the eastern pillar depicting the deteriorated condition of area where the gate-opening arm was affixed and the testimony of the witnesses certainly raised a question of fact regarding the vulnerability of that joint to failure with even ordinary use. Yet, as noted above, the court will assume any damage was caused by and subsequent repairs necessitated by Mr. Mains' actions.

Footnote 6:The fact that only Ms. Sullivan has paid for repairs to the gate in the last few years does not give he any additional rights or special status. As noted by the Court of Appeals, "nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property." Myers v. Bartholomew, 91 NY2d 630, 632 -633 (1998). Moreover, since "an owner may not unilaterally, and without the consent of the other owners, subject property held in common to an easement in favor of other property either owned by him alone or third parties," Mancini v. Bard 42 NY2d 28, 31(1977), Ms. Sullivan could not unilaterally limit Mr. Main's easement rights by simply paying for repairs to the gate.

Footnote 7:Schedule "A" of the defendant's quitclaim deed. See footnotes #3 and #4 supra.

Footnote 8:Butler ex rel. Butler v. Rafferty, 100 NY2d 265, 269(2003)["This undivided interest (usually called "unity of possession") is a right enjoyed by all the cotenants whether or not they are in actual possession of the premises. "].

Footnote 9:Compare Butler ex rel. Butler v. Rafferty, 100 NY2d 265(2003)(a written agreement and lack of control precluded tort recovery by a third party from one of the co-tenants).

Footnote 10:In the context of criminal cases, it clear that a co-owners cannot be convicted stealing from one another. As noted by the Court of Appeals:

[a]t common law, no less than today, the requirement that the victim of a theft be an "owner" of the stolen property was an indispensable element of the crime of larceny. The idea behind this requirement was that the property alleged to be stolen had to "belong" to a party other than the accused. If the defendant was the owner of the property and entitled to possession at the time of the taking, there could be no larceny. From this principle emerged the rule that if property was owned by two or more persons, none of the owners could commit larceny from the others.

People v. Zinke 76 NY2d 8, 11(1990).

Footnote 11:Caprer v. Nussbaum 36 AD3d 176, 184(2nd Dept., 2006)(citations omitted). Compare Tzolis v. Wolff, 39 AD3d 138 (1st Dept., 2007)(finding dicta in Caprer not binding in action by a member of an LLC).

Footnote 12:Mancini v. Bard, 42 NY2d 28, 31(1977).

Footnote 13:From the poem "Mending Wall" found in the Complete Poems of Robert Frost, New York: Holt, Rinehart and Winston, 1949.

Footnote 14:Westerhoff, Caroline A. "Good Fences. The Boundaries of Hospitality." Cambridge, Mass.: Cowley, 1999, at page 157 cited in the introduction to "Good Fences Make Good Neighbours": History and Significance of an Ambiguous Proverb - The Twenty-First Katharine Briggs Memorial Lecture, November 2002" delivered by Wolfgang Mieder, subsequently published in the August, 2003 issue of Folklore Magazine and found online at http://findarticles.com/p/articles .

Footnote 15:This phrase is attributed to the Romanian born writer Elie Wiesel who was awarded the Nobel Prize for Peace in 1986.

Footnote 16:While this court has reached it conclusion based upon its responsibility to do substantial justice between the parties, it may be that given the parties status as "tenants in common" that a could find that: CPLR 3211(a)(1) would allows for the court to dismiss this action based upon documentary evidence provided by the deeds before the court; CPLR 3211(a)(3) would permit the court to dismiss this action upon a finding that Ms. Sullivan lacks the legal capacity to sue a co-tenant; and CPLR 3211(a)(7) authorizes the court to dismiss a complaint that fails to state a legally cognizable cause of even accepting as true all of the facts alleged because not all co-tenants are named plaintiffs. Cf. Rosenbluth v. Ornstein, 21 Misc 3d 1117(A)(Supreme Court, Nassau Cnty.,2008)(derivative action by members of a LLC).