Plaintiff commenced this action by filing a Summons and Complaint on December 12, 2008. Plaintiff alleged that he was an owner of an easement located on Carmel Lane in Hampton Bays, New York and that on or about October 20, 2008, and on many occasions thereafter, Defendants wrongfully placed rocks upon Plaintiff's property and used Plaintiff's property as a private driveway for the purpose of ingress and egress to Defendant's property. Plaintiff sought damages for trespass and permanent injunction restraining Defendants from trespassing upon Plaintiff's property, from continuing to use Plaintiff's property as a driveway, and compelling them to permanently remove the rock walls. Defendants answered the Complaint denying the allegations, asserting the following affirmative defenses: (i) statute of limitations; (ii) lack of personal jurisdiction; and (iii) failure to join a necessary party. [*2]

After the issue was joined, Plaintiff moved, pursuant to CPLR §3212, for an order granting him summary judgment against Defendants, and Defendants cross moved, pursuant to CPLR §3212, for an order granting them summary judgment dismissing Plaintiff's Complaint. In its July 27, 2009 decision, the Supreme Court of Suffolk County (Tanenbaum, J.) denied issuing a preliminary injunction, stating that Plaintiff failed to make the requisite clear showing of irreparable harm, a balancing of the equities in his favor, and a likelihood of success sufficient to justify imposition of injunctive relief. Moreover, the submission of evidence by both parties raised significant questions of fact concerning the claimed encroachment sufficient to defeat both motions for summary judgment. The action was transferred, pursuant to CPLR §325(d), to this Court for trial. The parties consented to the Court's determination based upon stipulated facts, documentary evidence, limited testimony and their trial memoranda of law.

In the post-trial memorandum of law, Plaintiff concedes that Defendants are holders of an easement of way on Plaintiff's parcel, but argues that their rights are limited to ingress and egress only. Consequently, they do not have the right to erect rock walls there. Plaintiff further argues that the constructed by Defendants rock walls materially interfere with vehicular traffic traveling on the easement pathway. In their memorandum of law, Defendants argue that Plaintiff's action for trespass cannot be maintained as a matter of law, because Defendants are holders of an easement of way. They further argue that Defendants' use of the right of way is reasonably necessary for the convenient enjoyment of the servitude, and therefore injunctive relief is not warranted.

In support of their respective positions the parties have submitted the following documents:

1.Survey of Carmel Road properties, undated, including Plaintiff's and Defendants' properties (hereinafter "Map No. 1"). The survey depicts the location of the easement in relation to the parties' properties. It describes Defendants' easement of way as an "asphalt driveway" delineated by a "rock border (avg. rock size 10)." It also depicts the location of Defendants' mailbox facing Carmel Road in alignment with the end of the rock border, and describes it as "mail box 1.0' S of edge of stone 8.0'N of PL."

2.Suffolk County Tax Map No. 900—299-01, dated March 1, 1991, titled "Carmel Road Off Lynn Avenue, Hampton Bays; Carmel Road Owners" (hereinafter "Map No. 2").

3.Letter from Plaintiff's attorney, George A. Huwel, to Maurice Goldman, dated October 28, 2008, stating that Plaintiff will commence an action for trespass if Goldman fails to remove the rock walls allegedly encroaching on Plaintiff's property within 3 days, and enclosing "a copy of Tax bill, the Deed and a copy of the 10/7/08 survey from Dolliver" documenting the alleged encroachment. [*3]

4.Bargain and Sale Deed, dated September 2, 1993, conveying the property designated as Sec. 299, Block 01.00, Lot 046.000 from Harley M. Plander to Plaintiff (hereinafter "the Deed").

The Deed describes the property as "a 50 foot private road, known as Carmel Road" and reads in pertinent part:

"The party of the second part by the acceptance of this deed covenants and agrees for himself, his legal representatives, distributees and assigns, that the above described premises shall at all times be continued in the use for road purposes only, and, as such, same is and shall remain subject to all outstanding easements in favor of other owners whose properties front on said private road and who are entitled to ingress and egress over same from Lynn Avenue to Shinnecock Bay."

According to the Deed instrument, Defendants are the holders of a 50 foot express easement right in common with other lot owners to traverse the private roadway known as Carmel Road.

5.Copy of the Supreme Court of Suffolk County decision dated July 27, 2009.

6.Photographs depicting Defendants' driveway, rock border, and the portion of Carmel Road bordering with the parties' properties.

Plaintiff did not submit any proof of damages.

On May 3, 2011, the parties entered into a written stipulation as to the following facts:

1.Plaintiff is a fee owner of a certain 400� foot long portion of a 50 foot wide and 1000� foot long private road known as Carmel Lane at Hampton Bays.

2.Plaintiff acquired his interest by deed dated September 3, 1993 recorded at Liber 11646 page 241 on September 29, 1993.

3.Plaintiff resides at a residence at 13 Carmel Lane.

4.Defendants are the fee owners of a residence at 14 Carmel Lane.

5.Defendant Maurice Goldman is the fee owner of 14 Carmel Lane by a deed dated December 3, 1982 recorded at Liber 9282 page 505 on December 10, 1982.

6.Carmel Lane runs east and west between Lynn Avenue, a municipally maintained public road about 700� feet to the west of Defendants' residence and about 925� feet west of Plaintiff's residence, and dead ends at the Shinnecock Bay.

7.Carmel Lane at various parts is improved with either an earth or stone surface which is of varying widths ranging from 11.2 feet to greater widths.

8.Each resident, including guests, invitees and assigns, on Carmel Lane owns an easement to pass and repass by vehicle and by foot over Carmel Lane, including a right to install utilities. [*4]

9.Plaintiff has since 1993 and recently cleared vegetation from the south side of the improved portions of Carmel Lane, including on the east and west sides of the Defendants' asphalt driveway and rock border and south of the Defendants' mailbox.

10.More than ten residences use Carmel Lane for ingress and egress and four residences including Plaintiff's residence and a newly rebuilt residence are east of Defendants' driveway on Carmel Lane.

11.Plaintiff receives fuel oil, mail, UPS and Federal Express deliveries at his residence.

12.Plaintiff has built and trailered out to Lynn Avenue 20 boats at his residence over the years.

The parties have consented to the Court's inspection of the premises.

Although this case was determined upon submission of stipulated facts, the testimony was taken to establish how long Defendants' driveway and their mailbox have been maintained within the easement at issue. On May 3, 2011, this Court held a hearing during which Plaintiff and Defendant Maurice Goldman testified as follows:

Plaintiff stated that Defendants' mailbox has been in the location depicted by Map No. 1 and the photographs in evidence for the past 20 years, and that Defendants' asphalt driveway was constructed in 1983, a year after he purchased his home.

While Plaintiff testified the rock border interferes with delivery trucks' ability to turn in snow and ice on the 12 foot wide road, he also stated that the presence of the rock border in the easement does not interfere with the use of the land, and that he wanted it removed as a matter of principle, because it was constructed on his property.

Defendant stated that his driveway was built in 1982 and that the rock border was constructed in 2008. He also testified that the rock border does not obstruct the passage of vehicles on the road and that construction vehicles pass and repass on the portion of Carmel Road bordering his driveway without incident. Defendant further testified that, so far, Plaintiff's children were the only ones whose vehicles have hit the said border.

The Court notes that although the Complaint refers to the private road subject to the easement of way as "Carmel Lane," the Bargain and Sale Deed and the submitted land surveys refer to it as "Carmel Road," which designation will be used for the purpose of this decision. The Court further notes that although Plaintiff describes the alleged encroachment as "rock walls," Map No. 1 describes it as a "rock border," which is consistent with its appearance on the photographs submitted into evidence, and which designation will be used for the purpose of this decision.

In matters such as this, it is the province, and indeed the obligation, of the trial court to assess and determine matters of credibility. (Morgan v McCaffrey, 14 AD3d 670 (2d Dep't 2005); Matter of Liccione v Michael A., 65 NY2d 826 (1985). Here, the burden is upon the Plaintiff to plead and prove its direct case by a fair preponderance of the credible, relevant and material evidence. Prince-Richardson on Evidence §3-210; Torem v Central Avenue Rest, 133 AD2d 25 (1st Dep't 1987). Credible evidence has been defined as evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered, and is evidentiary in nature and not merely a conclusion of law, nor mere conjecture. Dille v Kelly, 31 Misc 3d 1232(A)(NY Supreme Court, NY County, 2011).

Based on the submitted evidence, Carmel Road is not improved to its full width, but is largely a 12� wide dirt pathway of stone and soil surface. Throughout its length, from west to east, the width of the roadbed varies, as indicated on Map. No. 1, measuring at various points 11.6', 12.1', 11. 2', 12.7, and 14.1'.

The width of the roadbed measured from the edge of Defendants' driveway is 11.2'. The roadbed continues at this width eastward toward and past the Defendants' mailbox, which is located to the east of their driveway. The sides and shoulders of Carmel Road are vegetated either with native plants and trees or with landscaping improvements installed by various bounding owners.

The evidence further establishes that Defendants' asphalt driveway curves outwards and more than doubles in width at the entrance of Carmel Road, and that Defendants have improved the driveway, and further improved the portion of the right-of-way by planting ornamental plants, and by placing 10" landscaping boulders along the curving parts of the driveway.

"An easement appurtenant occurs when the easement is (1) conveyed in writing, (2) subscribed by the creator, and (3) burdens the servient estate for the benefit of the dominant estate" (Corrarino v Byrnes, 43 AD3d 421, 422 (2d Dep't 2007). Generally, the extent of an easement is determined by the language of the grantor (Ciano v Smolan, 225 AD2d 727 (1996); Phillips v Jacobsen, 117 AD2d 785 (2d Dep't 1986). An easement granted in general terms must be construed to include any reasonable use to which it may be devoted, provided the use is lawful and is one contemplated by the grant (Missionary Soc. of Salesian Congregation v Evrotas, 256 NY 86 (1931); Somers v Shatz, 22 AD3d 565 (2005). "The rights of an easement holder are measured by the purpose and character of the easement. The owner cannot materially increase the burden of the servient estate or impose new and additional burdens on the servient estate (see, 49 NY Jur, Easements § 114)." Solow v Lieberman, 175 AD2d 120, 121 (2d Dept 1991).

According to the Deed, Defendants hold easement of way over Plaintiff's property. The Deed is deemed to intend that the way be of a reasonable, convenient, or necessary width. (Grafton v Moir, 130 NY 465 (1892); Le Sawyer v Squillace, 14 AD2d 961 (3d Dep't 1961). [*6]Contrary to Plaintiff's contention that the easement only entitles Defendants to travel upon Carmel Road, the easement owner is also entitled to all activities necessary for the use and enjoyment of the easement. (Grafton v Moir, supra).

As demonstrated by Map No. 1 and the submitted photographs, Defendants' have utilized the easement not only for the purpose of ingress and egress onto Carmel Road, but also to place their mailbox there, which they have maintained within the easement without any complaints from the servient estate's owner for over 20 years. Additionally, according to Map. No.1 and the photographs, the distance between the roadbed and Defendants' mailbox and between the roadbed and the stone border at issue is almost the same.

Furthermore, in light of Plaintiff's May 3, 2011 testimony that compelling Defendants to remove the rock border is a matter of principle rather than a necessity, the Court finds Plaintiff's claim that Defendant's rock border materially interferes with vehicular traffic on Carmel Road is not credible. The Court further notes that the within action appears to be part of a larger, ongoing neighborly dispute.

Based upon the evidentiary submissions and the parties' testimony the Court finds that Defendants' placement of the rock border along their driveway does not materially burden the servient estate, and it constitutes a reasonable use of their interest in the land (Phillips v. Jacobsen, supra.; Albrechta v Broome County Indus. Dev. Agency, 274 AD2d 651 (3d Dep't 2000).

As to Plaintiff's claim for trespass, such a claim may not be maintained where the alleged trespasser has an easement over the land in question (Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410 (2d Dep't 2004); Krosky v Hatgipetros, 150 AD2d 344 (2d Dep't 1989). Accordingly, Plaintiff's claim for trespass must be dismissed as a matter of law.

Based upon the foregoing, it is

ADJUDGED that Plaintiff has failed to plead and prove his direct case by a fair preponderance of credible, relevant and material evidence, it is hereby

ORDERED that the action is dismissed.

This constitutes the decision of the Court.

Submit Judgment

ENTER

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