Upon the foregoing papers the instant motion (004) by plaintiffs seeks partial summary judgment, pursuant to CPLR 3001, declaring the parties' respective rights and obligations under an express easement. Defendant ROBERT EGAN cross-moves for a default judgment on his counterclaims. Defendants SHARON MOERDLER-GREEN and DR. DAVID MOERDLER-GREEN cross-move for summary judgment declaring that plaintiffs have no right to pave or use a common easement for vehicular access. After review of the papers, together with the opposition submitted thereto; review of the Court file; and upon due deliberation, the motion and cross-motions are decided as follows.

In this action, plaintiffs MIRJANA BLOKAR FEDER and THEODORE FEDER (hereinafter "the Feders") allege that all defendants are interfering with their rights to a 20-foot-wide permanent easement, conveyed to the property, 355 West 246th Street, Bronx, New York, in or about 1924.

The Feders purchased the property at 355 West 246th Street in 1989. Their property is bordered by 335 W 246th Street, Bronx, New York, owned by defendant ROBERT EGAN, at 335 West 246th Street, to the west, and 4600 Livingston Avenue, Bronx, New York, owned by defendants NICOLE MILLER and RALPH MARIN, to the south. Defendants DR. DAVID MOERDLER-GREEN and SHARON MOERDLER-GREEN (hereinafter "the Moerdler-Greens") own the property at 4640 Livingston Avenue, Bronx, New York, which borders the Miller-Marin property to the west. All four properties share a common easement of about 20 feet that extends from north of the Moerdler-Green Property into the Miller-Marin Property and borders both the Feder Property and the Egan Property. Intersecting with this common easement is a developed easement that leads from Livingston Avenue through the Moerdler-Green Property and acts as a driveway for the Egan Property.

In 1923, the property at 355 West 246th Street was sold with language for the easement in question: "a right of way and easement with others for ingress and egress with the privilege of laying water and gas mains and sewer pipe and conduits for electric light and telephone service over a strip of land 20 feet in width adjoining part of the northerly line of the parcel of land hereinabove described and extending easterly to a right of way formerly granted to George J. Puckhafer." In 1944, another deed for the property recodified the language for the common easement, again for ingress, egress, and the installation and maintenance of utilities. The language regarding the easement, in a 1989 deed to the Feders, now states: "with a right-of-way of easement in common with others for ingress and egress and with the privilege of installing and maintaining utilities in and over a strip of land twenty feet."

Since its creation, the easement remained undeveloped, with vegetation and stones across the twenty-foot expanse. However, in 2024, the Feders applied with New York City Landmarks Preservation Commission to "make changes to the front side or rear yards and areaways" and "utiliz(e) a right-of-way and easement in common with others for ingress and egress." The application was granted on February 6, 2024, with an amendment in November 2024, with [*2]permission to "install gravel over an existing unpaved area in the rear yard for the purpose of creating a parking area" (Id.). The Feders assert that the construction of this new paved area and the development of the easement for their sole use is to better facilitate access in their needs as elderly owners, and the inability to continue construction has rendered them effectively "homeless." However, defendants assert, and the Court notes, that plaintiffs have access to their home from its original entrance at West 246th Street. Any approvals issued by the New York City Landmarks Preservation Commission do not alter or enlarge the parties' private property rights or the scope of the express easement.

Since at least 2021, the parties have disagreed about control of the easement. The Feders placed their property at 355 West 246th Street on the market in 2020 and as yet have not sold. They contend, however, the Moerdler-Greens and Miller/Marin have been instrumental in preventing any sale, as they have allegedly approached multiple prospective buyers, asserting they each have exclusive ownership of the easement. The Feders further contend that the Moerdler-Greens and Miller/Marin have placed physical impediments to their use of the easement — with Miller/Marin placing a sign near the mouth of the easement for "Emergency and Authorized Vehicles Only" in 2022 and allegedly installing a camera pointed at the entrance of the Feders property and the Moerdler-Greens placing orange cones and garbage cans at the mouth of the easement on Livingston Avenue. The Feders further contend that the Moerdler-Greens have gone even further in their obstruction, with their family member "abusing his authority and improperly influencing municipal actions" to institute at least two New York City Department of Buildings Inspections.

The Feders assert that Mr. Egan's behavior includes continuously harassing their property manager and contractors, as well as erecting a stone wall that intersected with their property, which has since been removed. In particular, the Feders point to an incident on March 4, 2025, when Mr. Egan entered their property to speak to the Feders' property manager, Mr. Medina, and their contractor at the time, which escalated to Mr. Egan using obscenities, wooden stakes being pulled out of the ground and thrown, and the police being called to the residence.

The defendants, in opposition to plaintiffs' claims, assert that the Feders do not have a legal right to unilaterally develop the common easement. The Moerdler-Greens assert adverse possession and abandonment of the easement, whereas the remaining defendants argue that though there is an express grant to the Feders for the easement, their right to ingress, egress, and the maintenance of public utilities does not extend to developing the parcel beyond its historical and current use. Defendants also argue that though they might have spoken to prospective buyers of the Feders' property, they have not actively deterred these buyers from any possible purchase, but instead have answered questions regarding their knowledge of the status of the easement when they are asked. They further assert in this regard that they have never entered the Feders property to specifically speak to prospective buyers. All defendants finally assert that any objects that the Feders claim obstruct their ability to continue construction on their property is immaterial, as they have either been removed or placed solely on their property.

To succeed on this motion for summary judgment on their declaratory judgment on an express easement, plaintiffs must show that, in the language of the express easement, they have the entitlement of which they seek (see Berg v Cahill, 213 AD3d 725 [2d Dept 2023]). "Express easements are defined by the intent, or object, of the parties" (Lewis v Young, 92 NY2d 443, 449 [1998]). "Where the intention in granting an easement is to afford only a right of ingress and [*3]egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder" (Id.). When there is an express grant for an easement, and "a right of way reserved, but not specifically defined, the rule in such cases is that the only way need be only such as is reasonably necessary and convenient for the purpose for which it was created" (Grafton v Moir, 130 NY 465 [1892]).

The language of the easement, as stated fully above, provides for ingress, egress, and the maintenance of utilities. Since the initial grant in the 1920s, the easement has remained undeveloped and has been a grass path between the houses at subject in this action, terminating at Livingston Avenue. No party has attempted to convert the path into a driveway for vehicles, and certainly, the language for maintaining utilities evinces a desire for the parcel to remain unencumbered by concrete, asphalt, or gravel to provide access to any utilities underground. The original drafters of the easement did not write into their grant the ability to move vehicles over the easement, nor have any subsequent deeds enlarged the plaintiffs' right of usage of the easement to include pavement or vehicles. Plaintiffs, as easement holders, are granted a right of passage on this grass path, but "not any right in a physical passageway itself" (Lewis, 92 NY2d at 449).

Based on the language of the express grant of the easement and its historical use, plaintiffs have established a right to the common easement but have failed to demonstrate that this right extends to developing the easement as a secondary driveway to their property. Plaintiffs remain free to enter and exit their property over the easement on foot, but that right does not expand simply because they now prefer that the strip be paved and used as a driveway rather than remain in its current state. Plaintiffs' statement that they "do not seek to convert the easement into a private driveway, but to lawfully use an established ten-foot-wide right-of-way for vehicular ingress and egress" does not alter the proposed result of the development: to pave the easement for sole access to the rear of their home.

The case law used to support plaintiffs' arguments, though instructive, is not controlling in the instant matter. In DiDonato v Dyckman, the easement in question was a 12-foot-wide already surfaced road (166 AD3d 942, 943 [2d Dept 2018]). In Gugino v Scripa, it was an easement for a lakeshore frontage parcel that was seasonally used as a temporary dock that the defendant attempted to expand as a permanent dock (228 AD3d 1112, 1112 [3d Dept 2024]). In particular, the issue at bar was for an improper expansion by the servient estate for the same purpose it was originally contemplated. The language in the deed was explicitly for "docking." In Havel v Goldman, the easement in question was already partially improved and used for vehicular travel by the point when plaintiff sought to expand the easement (95 AD3d 1174 [2d Dept 2012]). In each of those matters, the challenged use fell within the general purpose of the grant and involved only the extent of an already established use. Here, by contrast, plaintiffs seek to introduce a new vehicular use and permanent paving that were neither contemplated by the original grant nor supported by the easement's historic condition. Plaintiffs here fail to show how an improved passage to their home would not overburden the servient estates. As such, their motion for summary judgment on their declaratory judgment cause of action is DENIED in its entirety.

To the extent defendants invoke SNAD or other land-use regulations as an independent basis to preclude the proposed ramp and paving, the Court notes that questions of regulatory compliance are distinct from the interpretation of the parties' private easement rights and are left to the appropriate municipal authorities; the determination here addresses only the scope of the [*4]express easement as granted in the deeds. Similarly, the Court need not reach the Moerdler-Greens' arguments regarding adverse possession and abandonment of the easement, as plaintiffs' claimed right to pave and use the strip for vehicular access fails on the language of the express grant and its historic use. Accordingly, it is hereby

ORDERED plaintiffs' motion for partial summary judgment, pursuant to CPLR 3001, seeking a declaratory judgment as to the parties' respective rights and obligations under the alleged express easement, is denied in its entirety; and it is further

ORDERED that the cross-motion of defendants SHARON MOERDLER-GREEN and DR. DAVID MOERDLER-GREEN is granted to the extent that it is

ADJUDGED and DECLARED that plaintiffs hold an express easement over the subject strip for pedestrian ingress and egress and for the installation and maintenance of utilities, in common with others, but that said easement does not authorize paving the strip or using it for vehicular ingress and egress; and it is further

ORDERED that the cross-motion of defendant ROBERT EGAN, insofar as it seeks a default judgment on his counterclaims and related relief, is denied

This is the Decision and Order of the Court.