The following e-filed documents, listed by NYSCEF document number (Motion 001) 64, 65, 66, 67, 68, 76, 78, 79, 80, 81, 82, 83, 84, 92 were read on this motion to/for DISMISS.

The following e-filed documents, listed by NYSCEF document number (Motion 002) 72, 73, 74, 75, 77, 85, 86, 87, 88, 89, 90, 91 were read on this motion to/for DISMISS.

Plaintiffs Peacock Point Property Owners Association, Inc. ("Homeowners Association" or "HOA"), Diane Volk, John A. Werwaiss, John Kevin Wade, Alexandra C. Wade, Michael Voris, Alexandra Voris, James Sullivan, Sara Sullivan, Drew Mallory DeMann, Morgen Schick [*2]DeMann, George P. Davison, Henry P. Davison II, Richard Cammerer, and Ron-Alyse Cammerer filed a Summons and Complaint against two properties in their private neighborhood Peacock Point, 91 Peacock Lane LLC and 91A Peacock Lane LLC, and against individual owners of the defendant properties, Philip DelPrete, Gail DelPrete, Peter Castellana, Jr., and Marie Castellana.

Defendant property 91A Peacock Lane and defendant owners of the LLC, Peter Castellana, Jr., and Marie Castellana, filed a motion to dismiss pursuant to CPLR 3211(a)(1), (a)(3), and (a)(7), and to cancel the lis pendens filed to encumber 91 Peacock Lane LLC's title. They also seek summary judgment and dismissal of the claims against Mr. and Mrs. Castellana, who are members of 91A Peacock Lane LLC, and dismissal of the HOA as a plaintiff.

The Complaint is brought pursuant to Articles 5 and 15 of the New York Real Property and Proceedings Law (RPAPL) and Article 30 of the Civil Practice Law and Rules (CPLR) asserting plaintiffs have a prescriptive easement over defendants' properties. The alleged prescriptive easement is for the use and access over both defendants' properties for plaintiffs to be able to use the "common recreation areas of Peacock Point and the Waterfront Areas." Plaintiffs assert that they and/or their respective predecessors-in-interest regularly and continuously used, accessed, and enjoyed traversing over 91 and 91A Peacock Lane. Plaintiffs refer to the areas traversed using the names "Ring Road" and "Beach Spur." Plaintiffs further seek to permanently enjoin defendants from interfering with their easement rights to use and access the "common recreation areas of Peacock Point and the Waterfront Areas."

Defendants assert, inter alia, that no prescriptive easements can exist over their properties because the documentary evidence submitted with the complaint directly refutes plaintiffs' claims. Defendants contend that each individual plaintiff is subject to the 1984 Declaration of Covenants and Restrictions ("1984 Declaration"), which is recorded in each plaintiff's chain of title in the Peacock Point subdivision. Defendants argue that because the 1984 Declaration expressly waives any easements not specifically granted, the complaint must be dismissed. Defendants further assert that the individual members of the LLCs — Philip DelPrete, Gail DelPrete, Peter Castellana, Jr., and Marie Castellana — cannot be held personally liable for any debts, obligations or liabilities of the limited liability company, whether arising in tort, contract or otherwise, and should be dismissed from the action. Additionally, defendants collectively assert that the HOA has no claim against them because the action is not germane to the purpose of the association and that this suit is directly contrary to the HOA interests, as the claims violate the restrictive covenant the HOA is obligated to enforce.

Defendants' Arguments

Defendants 91 Peacock Lane LLC and 91A Peacock Lane assert similar and related legal arguments. They contend that Article III, Section 2 of the 1984 Declaration provides that all Peacock Point homeowners are permitted to use only those express easements specifically identified in the 1984 Declaration, and that the plain language of the declaration forbids all other easements, including those asserted by plaintiffs over Lots 1229 (91 Peacock Lane), 1263 and 1264 (91A Peacock Lane). Defendants argue that dismissal under CPLR 3211 is warranted because the documentary evidence conclusively refutes plaintiffs' factual allegations and establishes a defense as a matter of law. They further argue that dismissal under CPLR 3211(a)(7) is appropriate because even when all reasonable inferences are drawn in plaintiffs' [*3]favor, the facts here do not support a cognizable cause of action.

The defendants argue that a restrictive covenant in the 1984 Declaration identifies specific easements, namely "[t]he easements for ingress and egress," which allows residents to travel in and out of the neighborhood, permitting use of Peacock Lane (recorded Lot 1222). Likewise, the easement on the road to the HOA Waterfront Recreation Area is recorded as a tax lot, allowing access to every owner in the subdivision and the HOA. Additionally, all homeowners in the HOA have a formerly recorded easement over the Waterfront Recreation Area.

Defendants rely on the specific language of the declaration which states that "[n]o other easement herein or elsewhere imposed shall confer any right on any lot owner or member to go upon any of the Land or any lot other than his own, except the subdivision streets and the Waterfront Recreation Area" (Article III, Section 2). They assert that restrictive covenants must be strictly enforced where the parties' intent is clear and the limitation is reasonable and not offensive to public policy. Defendants further contend that individual plaintiffs are charged with the notice of the restrictive language in the 1984 Declaration because each individual plaintiff purchased their recorded deeds, which incorporate the declaration, and therefore they had notice of the restrictions. Defendants also assert that the restrictive covenants bind all subsequent grantees.

Defendants further assert that plaintiffs' attempt to create new prescriptive easements is barred by the clear language of the 1984 Declaration. They contend that Article III, when read as a whole, demonstrates an intent to limit easement rights to the Waterfront and Recreation Area as referenced on the subdivision map. Specifically, the declaration states that "the easements for ingress and egress imposed on all subdivision streets shall permit passage and re-passage to and from Peacock Lane, over the subdivision roads and to the Waterfront Recreation Area by all lot owners and members." This language is followed by a restrictive covenant prohibiting any member from going upon another owner's property except via the subdivision streets and the Waterfront Recreation Area. Accordingly, defendants argue that plaintiffs alleged prescriptive easements are barred by the express language and construction of the 1984 Declaration.

Defendants further contend that the language "No other easement herein or elsewhere imposed shall confer any right . . . " is forward-looking, noting that the use of the word "shall" indicates future application. They argue that restrictive covenants are inherently prospective, as they are designed to govern future rights.

Lastly, defendants argue that plaintiffs cannot establish a prescriptive easement because they cannot demonstrate a "claim of right." Defendants contend that while the legislature defined "claim of right" in the context of adverse possession, the same principle applies to prescriptive easement claims. RPAPL § 501 defines a "claim of right" as "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be." Defendants argue that plaintiffs cannot reasonably believe they had the right to use defendants' properties and therefore cannot establish a prescriptive easement.

Plaintiffs' Arguments

Plaintiffs provide that when considering the motion to dismiss, the Complaint should be afforded a liberal construction, and the allegations should be accepted as true and accorded the benefit of every possible favorable inference which the court should apply.

Plaintiffs argue that the court should deny defendants' motion to dismiss because the [*4]1984 Declaration only concerned prior and contemporaneous easements. Plaintiffs claim that the 1984 Declaration should be read holistically, and that the language must be considered under contract principles of interpretation. Further, they assert that the four corners of the 1984 Declaration provide the intention of the parties, and that upon considering the entire 1984 Declaration, it does not impose restrictions on prescriptive easements. Moreover, plaintiffs assert the restrictive covenant must be construed against defendants because defendants' motions are asking the court to draw a conclusion beyond the clear meaning of the language of the restrictive covenant.

Additionally, looking to the specific language in the 1984 declaration, plaintiffs assert the language in Article III, Section 1, which states: "Extent of Easements. All easements heretofore imposed on the Land or any portion thereof shall be for the benefit of and extend to each owner and such benefit shall pass with title to each lot" (emphasis added) is not language in the future tense, as "heretofore" means "up to now; before this time." Black's Law Dictionary (12th ed. 2024). Therefore, the court cannot determine that the language is prospective.

Plaintiff also states the language of the agreement does not explicitly release and remise by way of quitclaim its successors and assigns forever, its rights, title and interest, if any, in and to the lands for each specific property deed. Additionally, because the 1984 Declaration directly addressed the homeowners' access to the Waterfront Recreation Area by express easements, it should also have named each residential property when waiving future easements. Furthermore, plaintiffs provide that a comparison to the explicit language related to future easements in the prior 1979 Declaration should preclude the court from concluding the language of the 1984 Declaration is specific enough to be a prospective waiver. This is because the 1979 Declaration explicitly references future easements regarding the owners of specifically identified lots, while the 1984 Declaration does not. Additionally, Plaintiff argues the 1984 Declaration of Covenants is ambiguous and capable of more than one interpretation. Therefore, they assert that where a covenant is ambiguous the court must interpret it in a limiting and restrictive manner. Further, they assert defendants' reading of the 1984 Declaration is overly broad.

Lastly, plaintiffs assert that their complaint states a cause of action for a prescriptive easement and that the element of needing to establish a "claim of right" as asserted by defendant does not apply to prescriptive easements. They argue that the elements of prescriptive easement are that the use of the property must be hostile, open and notorious, continuous and uninterrupted for the prescriptive period of 10 years. Further, plaintiffs claim defendants' argument regarding the lack of a "claim of right" is not an element defined by the 2008 amendments to RPAPL § 501 codifying adverse possession claims. Therefore, because the statute does not apply or address prescriptive easements, they are governed by common law, not the statute. Lastly, Plaintiffs assert that the 2008 RPAPL § 501 codification of adverse possession is not retroactive, moreover, plaintiffs are asserting their claims based on property rights vested in 2002.

Court's Documentary Examination Regarding the Restrictive Covenant

In December of 1977 about 50 acres of land in the Village of Lattingtown, now identified as Peacock Point, received conditional permission to subdivide. A revised subdivision map was filed with the County Clerk in May 1979. An Agreement and Declaration, dated March 3, 1979, was executed and recorded on June 1, 1979, and an Amendment of Declarations and Restrictions was recorded in August 1979, conforming the lot numbers and designations. The 1979 Subdivision Map designated two adjacent waterfront beach lots for use by the Homeowners [*5]Association. These HOA waterfront parcels run against the property lines for defendants' lots. The defendants' lots, prior to 2023, were owned by one owner but were divided into three separate lots at the time Peacock Point became a residential development.

In November of 1984, when the 1984 Amended Subdivision Map was approved, amending the 1979 Subdivision Map, all but one of the Peacock Point property owners entered into the 1984 Declaration of Covenants, creating the Homeowners Association. Thereafter, in 2011, that remaining property was joined to the declaration.

The 1984 Declaration of Restrictions and Covenants provided for "the orderly development of Peacock Point into a small residential community served by private roads, and with the design of residences and additions thereto, appurtenant structures and landscaping built on or after the date of this declaration subject to prior approval as to insure orderly and harmonious development," and to "permanently provide for the preservation of the values and amenities in Peacock Point as developed and for the maintenance of the private roads, drainage facilities, and Waterfront Recreation Area." The 1984 Declaration of Restrictions and Covenants states, in part, that the "home plots now existing and to be created therefrom are and shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, easements . . . ."

Importantly, Article III, Section 2 of the 1984 Declaration of Covenants and Restrictions (the "Restrictive Covenant") states:

The easements for ingress and egress imposed on all subdivision streets shall permit passage and re-passage to and from Peacock Lane, over the subdivision roads and to the Waterfront Recreation Area by all lot owners and members as required. No other easement herein or elsewhere imposed shall confer any right on any lot owner or member to go upon any of the Land or any lot other than his own, except the subdivision streets and the Waterfront Recreation Area.

The individual plaintiffs and defendants all purchased their home plots subject to the 1984 Declaration. The defendants' properties were purchased by the current owners and had their separate deeds recorded in September of 2024. Thereafter, in 2024 and 2025, 91 Peacock Lane LLC filed building plans and permit applications for construction of a home. The revised site plan prepared by A.M. Sutton Architects, P.C., includes building over the area plaintiffs claim they have a prescriptive easement over on Lot 1229. Similarly, 91A Peacock Lane LLC in 2024 and 2025 submitted building applications for the construction of a home and installation of a fence in site plans prepared by Northcoast Land Surveying and Civil Engineering which includes plans to build over and use the area plaintiffs claim they have a prescriptive easement over on Lots 1263 and 1264.

Based on the complaint and the attached documents related to the Peacock Point property, the court finds the following regarding the maps and surveys provided in relation to the defendants' properties Lots 1229, (91 Peacock Lane) 1263 and 1264 (91A Peacock Lane). ^[FN1] A topographical survey of the entire Peacock Point property prior to the property becoming a subdivision was provided. This 1913 survey shows a portion of the map that now contains [*6]defendants' lots. The 1913 map has no marked lots, but the corner of the entire Peacock Point property, where this dispute is taking place, includes portions of what is now the defendants' Lots 1229, 1263 and 1264. The 1913 Map depicts the outline of a large house on the corner of Peacock Point, next to the Long Island Sound. The 1913 topographical map shows an unlabeled road leading to the property (allegedly now a portion of Peacock Lane) and what appears to be two pathways that lead to what was a large house (demolished in 1963). The court finds the map depicts pathways off the main road that lead both to the house and then proceed on to the waterfront on the property now identified as Lot 1229. That pathway is not identified as a road.

The court examined the 1979 Subdivision Map that was part of Peacock Point's first development of the area into property lots. On this map, there are proposed lots and homes in the area where the defendants' properties are currently located, indicating that these lots were meant to be for individual homes. In the 1979 map, there is a clear indication that the subdivision intended to have a common recreation area adjoining and abutting where defendants' lots currently exist.

A 1984 Amended Subdivision Map amended the 1979 Subdivision Map. It is not a full map of Peacock Point but relates to the portions of the map depicting the properties involved in this matter. The 1984 map depicts which lots were merged and deeded to the Homeowners Association for joint use by all the deed holders of the Peacock Point subdivisions, in accordance with the 1984 Declaration creating the HOA. The 1984 Amended Subdivision Map merges portions of other lots, including what was a portion of defendant 91 Peacock Lane's (Lot 1229) property into the recreational area intended for all residents. The 1979 map is made in conjunction with an Agreement and Declaration dated March 1979, inter alia, describing the two parcels of land set aside for the common recreation purpose and the portion of what was Lot 1229 being merged into the HOA property. This map does not depict any official roads transversing the defendants' properties but does depict a dotted line pathway that both abuts the Homeowners Association properties and runs into the areas of what is now defendants' properties, creating a road up to a depiction of a house on what is now identified as defendants' Lot 1229 and running through what is now identified as defendants' Lots 1263 and 1264 (all collectively defendants' properties).

A 1992 copy of a survey prepared by the Sears-Brown Group depicts defendants Lots 1229 and 1263 which lists two roads that match the 1984 Subdivision Map, depicting the unlabeled dotted line pathways that turn off Peacock Lane. The front portion of that path is next to the HOA property and then proceeds into Tax Lots 1229 and 1263 (defendants' properties). This map was created at or about the time the Planning Board Chairperson signed the 1984 Amended Subdivision Plan into effect. The court finds those pathways mirror what was on the 1984 Amended Subdivision Map. A Survey prepared by Lenze Land Survey dated September 23, 2023, depicts the same pathways onto the Defendants Lot areas 1229, 1263, and 1264.

Both parties agree that there is language in the 1984 Declaration creating a restrictive covenant and that that the court should review the four corners of the 1984 Declaration to determine whether the meaning of the language prohibits future restrictions of access or refers to prior restrictions. The court applies contract law analysis in the interpretation construing the language in a manner which gives effect to each and every part so as not to render any provision "meaningless or without force or effect." Nomura Home Equity Loan, Inc., Series 2006-FM2, by [*7]HSBC Bank USA, Nat'l Ass'n v. Nomura Credit & Cap., Inc., 30 NY3d 572, 581 (2017) quoting Ronnen v. Ajax Elec. Motor Corp., 88 NY2d 582, 589 (1996). Strict construction principles apply to restrictive covenants. See Witter v. Taggart, 78 NY2d 234 (1991). "[T]he threshold decision on whether a writing is ambiguous is the exclusive province of the court." Sutton v. E. River Sav. Bank, 55 NY2d 550, 554 (1982). Additionally, the court finds that while it examined the maps and prior agreements the parties cited as part of their arguments and were part of the complaint, it did not need to determine witnesses' credibility issues or extrinsic evidence to interpret the language of the 1984 Declaration and therefore the court's interpretation is an issue of law. See Carvel Corp. v. Rait, 117 AD2d 485 (2d Dep't 1986).

To begin with, the court finds that all parties purchased their lots with deeds subject to the 1984 Declaration of Covenants and Restrictions.

Language of the Restrictive Covenant

The court first analyses the relevant language of the 1984 Declaration alone, without consideration of the documents provided in relation to the complaint. The court finds that the first page of the document both labels the document as a declaration of "covenants and restrictions" (emphasis added) as separate ideas and conditions. This language that it is a declaration of both covenants and restrictions is in its opening paragraph as well. The document makes clear the purpose of the agreement, which was for the orderly development of Peacock Point with a focus on the design of the homes and landscaping and maintenance of the private roads, drainage facilities and the shared waterfront recreation area.

The language of the declaration subjects all individual property owners to the "covenants, restrictions, easements, charges and liens [ ] set forth, each of which is for the benefit of the Land and each and every owner from time to time of some or all the Land." The court finds that the language in that sentence notifies the deed holders firstly, that there exist easements and restrictions and secondly, that express easements have been established regarding the private roadway that allows access to their properties and to the waterfront recreation area.

Article III section 1 states "[a]ll easements heretofore imposed on the Land or any portion thereof shall be for the benefit of and extend to each owner and such benefit shall pass with title to each lot" (emphasis added). The court finds the first portion of the sentence is retrospective in relation to the express easements established and conversely prospective in the benefits intended for the future of each deeded lot. Importantly, Article III section 2, in its first section refers to the establishment of the express easements outlined in Article III which are easements for "ingress and egress imposed on all subdivision streets" and "shall permit passage and re-passage to and from Peacock Lane, over the subdivision roads and to the Waterfront Recreation Area by all lot owners and members."

The second sentence of Article III Section 2 is the sentence in which the parties disagree upon the meaning. That second sentence of Article III states "[n]o other easement herein or elsewhere imposed shall confer any right on any lot owner or member to go upon any of the Land or any lot other than his own, except the subdivision streets and the Waterfront Recreation Area" (emphasis added). The court finds the language is not ambiguous and that there is no other interpretation that can be made other than this language is meant to be prospective and seeks to enforce any easement that might be elsewhere imposed. Meaning imposed in the future, or even existing at the time of the agreement, but not expressly identified. Further, that sentence must be interpreted as prospective because the last portion of the sentence re-emphasizes that there are [*8]other easements which are disallowed "except" the subdivision streets and the Waterfront Recreation Area.

Language of the Restrictive Covenant in Conjunction with the Court's Examination of Documentation Existing at the Time of the Drafting of the 1984 Declaration

"On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), 'the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail' . . . The complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference." 298 Humboldt, LLC v. Torres, 197 AD3d 1081, 1083 (2d Dep't 2021) quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977). "A court is, of course, permitted to consider evidentiary material submitted in support of a motion to dismiss pursuant to CPLR 3211(a)(7) . . . If the court considers evidentiary material, the criterion then becomes 'whether the proponent of the pleading has a cause of action, not whether he has stated one.' " Sokol v. Leader, 74 AD3d 1180 (2d Dep't 2010) quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977). A motion to dismiss pursuant to CPLR 3211(a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it." Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977).

"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law." Davis v. Henry, 212 AD3d 597 (2d Dep't 2023) quoting Qureshi v. Vital Transp., Inc., 173 AD3d 1076, 1077 (2d Dep't 2019). "[T]o be considered 'documentary,' evidence must be unambiguous and of undisputed authenticity." Davis quoting Fontanetta v. John Doe 1, 73 AD3d, 78, 86 (2d Dep't 2010). "[T]he defendant bears the burden of demonstrating that the proffered documentary evidence conclusively refutes the plaintiff's factual allegations" 7 Mansion, LLC v. Calvano, 226 AD3d 730, 731 (2d Dep't 2024) quoting Giambrone v. Arnone, Lowth, Wilson, Leibowitz, Adriano & Greco, 197 AD3d 459, 461 (2d Dep't 2021).

The court notes that the individual plaintiffs in this matter do not submit any verifications to their complaint for any of their claims related to the prescriptive easement, so there are no testimonial facts to review or credibility determinations to be made. Further, there were no affidavits or statements from any previous owners of plaintiffs' properties submitted with the complaint.

Accordingly, the court in this decision has outlined the documentary findings of the reliable maps and documents provided with the complaint in order to ascertain what facts existed at the time the 1984 Declaration was executed to further determine the purpose of the restrictive easement and language of the declaration.

From reviewing the maps, the court finds that when the 1984 Declaration of Covenants and Restrictions was recorded, the original roadway leading to the original house depicted in the 1913 map, the 1979 map and the 1984 maps all show an intact road leading onto the property of the original home at the tip of Peacock Point. That original road runs along what is now the Waterfront Recreation Area and continues onto the defendants' properties. A portion of that road [*9]became Peacock Lane (an express easement identified in the 1984 Declaration) for most of its length. The portion of that road that runs along what is now the Waterfront Recreation Area and onto the defendants' properties was not identified as an express easement in the 1979 Declaration, and yet existed prior to the subdivision and when the 1979 Declaration and map were created. Thereafter, pursuant to the 1984 Declaration, a portion of that original road allows the Peacock Point homeowners, by express easement, to access what would have been a landlocked waterfront area that abuts the defendants' properties. That express easement is Peacock Lane. Therefore, at the time the 1984 Declaration was created, it was known that a portion of the original road was going to allow access onto the newly created and shared Waterfront Recreation Area. Further, it was clear that at the time the 1984 Declaration and 1979 Declaration and map were created, the original road existed and went onto the defendants' properties.

Therefore, the court finds that the language in the 1984 Declaration directly addressed any anticipated future easement claims based on the maps as they existed at the time the agreement was created, which includes the knowledge that the end of the original roadway, which became Peacock Lane, there was a pathway that continued onto the defendants' properties thorough 91A Peacock Lane and onto 91 Peacock Lane. Strictly construing the exact language of the restrictive covenant, there can be only one interpretation, which is that the declaration was meant to restrict any further easements on the properties not specifically identified in the 1984 Covenant. This restriction includes the road that continued onto defendants' properties. Moreover, the court finds that the language in the restrictive covenant was prospective because it made clear which easements were intended to be express and existed at the time of the construction of the agreement. Additionally, the court finds that every homeowner had notice of the restrictive covenant as it is recorded in all the deeds.

Restrictive Covenant and Waiver of Prescriptive Easements

Next, the court must consider whether restrictive covenants can prospectively waive or prevent the acquisition of a prescriptive easement. While New York courts have not squarely held that restrictive covenant language, standing alone, operates as a prospective waiver of all future prescriptive easement claims, the court need not reach that issue here.

The determinative inquiry in the prescriptive easement claim is whether the alleged use was hostile or permissive. In making that determination, the court must examine the recorded instruments governing the parties' rights and obligations. Article III of the 1984 Declaration expressly delineates the easements for ingress and egress and access to the Waterfront Recreation Area and further provides that no other easement shall confer a right to traverse land other than one's own, except as expressly permitted. This language establishes a comprehensive and permissive framework governing access within the Peacock Point subdivision.

The case law focuses on whether a specific use was permissive in determining whether the restrictive covenant language can prevent prescriptive rights from arising in the first place. In Charlebois v. Lobe-A Property Owners Inc., 193 AD2d 916 (3d Dep't 1993), a party asserting the prescriptive easement already had an express easement providing the same rights, and the court found that her use could not be considered "adverse" to the property owner's interests, which defeats the prescriptive easement claim because the express easement provided the same rights. In Anzalone v. Costantino, 145 AD3d 1236 (3d Dep't 2016), the court held that use pursuant to an express easement "is neither hostile nor adverse" and "does not in and of itself fix [*10]an otherwise undefined location so as to enlarge the interest of the [express] easement holder or reduce the interest of the landowner" by prescription. This case suggests that an express easement on a neighboring property which satisfies both the claimant's access needs and the purpose of the intended access is considered permissive use rather than adverse, particularly in the context of neighborly accommodation.

The cases of Charlebois and Anzalone indicate that the plaintiffs here would be precluded from claiming a prescriptive easement over identified areas where they already had an express easement for that purpose. Further, "where an easement is created by express grant and its sole purpose is to provide ingress and egress . . . the rule of construction is that the reservation refers to such right of way as is necessary and convenient for the purpose for which it was created." Mandia v. King Lbr. & Plywood Co., 179 AD2d 150 (2d Dep't 1992) (internal citations omitted).

The court finds that the prescriptive easement plaintiffs seek to enforce the pathways over defendants' properties to have access to the beach front, that they already have access to, through the express easement abutting and next to the express easements identified in the 1984 Declaration. The facts establish that the express easements were rights of way necessary for access to the waterfront though the HOA lot, and the road that leads to it, both for necessity and convenience. Moreover, the express easement allowing property owners access to the waterfront is part of the same continued pathway that ultimately leads onto defendants' properties. In other words, plaintiffs are seeking to use a pathway by prescriptive easement where they already have an express easement to access the same waterfront area.

Here, the court applies the principles of the Charlebois, Anzalone, and Mandia cases finding use by plaintiffs, as a matter of law, permissive rather than hostile. Because here, plaintiffs already possessed express easement rights sufficient to access the Waterfront Recreation Area, any additional traversal over defendants' properties for the same purpose cannot give rise to prescriptive rights. Accordingly, plaintiffs' prescriptive easement claims fail because the documentary evidence establishes that plaintiffs' use was permissive and insufficient to satisfy the hostility element required for prescription.

Intention of the 1984 Covenant

"Insofar as a grantor of an easement may create an extensive or limited easement . . . the extent of an easement claimed is to be determined by the language of the grant." Ledley v D.J. & N.A. Management, Ltd., 228 AD2d 482 (2d Dep't 1996) citing Morgan v. Bolson Realty Corp., 48 AD2d 331, 333 (3d Dep't 1975) and Phillips v. Jacobsen, 117 AD2d 785, 786 (2d Dep't 1986). An "instrument creating an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument." Village of Larchmont v. City of New Rochelle, 100 Misc 2d 463, 465-466 (Sup. Ct. Westchester County 1979). "Restrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy." Chambers v. Old Stone Hill Rd. Assoc., 1 NY3d 424 (2004).

In this decision the court has found that the language of the 1984 Covenant when taken holistically within the agreement alone, and also in conjunction with the prior 1979 Declaration, and all the maps, establishes a clear and reasonable intention to exclude any further easements, other than the express easements established within the 1984 Covenant.

Elements of a Prescriptive Easement/Claim of Right

Under New York law, "[t]o acquire an easement by prescription, it must be shown that the use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period" of 10 years. Asche v Land & Bldg. Known as 64-29 232nd St., 12 AD3d 386, 387 (2d Dep't 2004). Courts have used the term "claim of right" to describe use that is adverse to the interests of the true owner and not undertaken pursuant to permission.

Although RPAPL § 501 codifies the definition of "claim of right" in the context of adverse possession, prescriptive easement claims remain governed by common law principles. Under those principles, the dispositive inquiry is whether the use was of such a character as to place the owner on notice that it was being made under a claim of right and not by permission or sufferance. Use that is consistent with an existing express easement or a permissive access scheme cannot satisfy this requirement. However, the Appellate Division Second Department, in Oak Ponds v Willumsen, 295 AD2d 587, 588 (2d Dep't 2002) and Morales v. Riley, 28 AD3d 623 (2d Dep't 2006), considered a claim of right in the context of prescriptive easement claims, finding that awareness that others own the property will defeat any claim of right.

Here the court finds plaintiffs' deeds expressly incorporate the 1984 Declaration, which defines the scope and limits of easement rights within the Peacock Point subdivision. Plaintiffs are therefore charged with notice of both the existence and the extent of their express easement rights. Because plaintiffs already possessed lawful access to the Waterfront Recreation Area through recorded express easements, their continued traversal of defendants' properties for the same purpose does not constitute hostile or adverse use. Accordingly, plaintiffs have failed to establish the hostility or claim of right necessary to sustain a cause of action for a prescriptive easement.

Homeowners Association as a Party

The Peacock Lane Property Owners Association ("HOA") is one of the plaintiffs in this action. The defendants collectively seek dismissal pursuant to 3211(a)(3) asserting a lack of standing on behalf of the association. Further, defendants assert that the HOA is asserting a claim based on its own behalf and not as a representative of its members, yet there are no specific allegations that anyone acting on behalf of the association was traversing the defendants' properties, to claim a prescriptive easement. Defendants further assert that the HOA claim must be "germane to its purposes" and "it must be evident that neither the asserted claim nor the appropriate relief requires the participation of the individual members." Society of Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761 (1991).

The HOA has not indicated that "it has a substantial identification with the real property owners" or that it "was formed as a convenient instrument by which the property owners could advance their common interests and that it has a substantial identification with the real property owners" Westmoreland Ass'n, Inc. v. West Cutter Estates, Ltd., 174 AD2d 144, 151 (2d Dep't 1992). Additionally, there are no factual assertions that anyone on behalf of the HOA or an agent of the HOA is asserting a prescriptive easement over the defendants' properties. Moreover, there are no assertions that the HOA indicates it was suing the defendants as a representative on behalf of the entire HOA and pursuant to its stated purpose in its formation documentation. Further, even if that was the intention of the HOA, the court finds the language in the 1984 Declaration creating the purpose of the HOA would likely be in opposite to the enforcement of a prescriptive [*11]easement. Therefore, the court finds that HOA does not have standing to sue on its own behalf.

Individual Named Defendants

The individual owners of 91 and 91A Peacock Lane were named in the complaint. The property of 91 Peacock Lane is owned by 91 Peacock Lane LLC. The property of 91A Peacock Lane is owned by 91A Peacock Lane LLC. Both defendants assert that there are no grounds for individuals who are members of the corporations to be named in the complaint as there are no facts which lead to the necessity of piercing the corporate veil. Generally, a member of a limited liability company cannot personally be held to the obligations of the company, whether in tort or contract. Matter of DePetris v. Traina, 211 AD3rd 939, 940-941 (2d Dep't 2022). In order to pierce the corporate veil, plaintiff is required to provide assertions that the individual of the corporation exercised domination of the corporation with respect to the transaction being considered and that the domination was used to commit fraud or a wrongdoing which resulted in the opposing party's injury. Matter of Morris v. New York State Dept. of Taxation and Fin., 82 NY2d 135 (1993).

After review of the complaint and the documents attached to the complaint, the court finds there has been no assertion by plaintiff as to fraud or wrongdoing by the individual defendants and therefore there are no claims to be asserted against the individual defendants.

Conclusion

Based upon the foregoing, the court finds that plaintiffs have failed to state a viable cause of action for a prescriptive easement over defendants' properties. The documentary evidence establishes, as a matter of law, that plaintiffs' alleged use of defendants' properties occurred within a permissive framework governed by recorded instruments, including the 1984 Declaration of Covenants and Restrictions and the express easements incorporated into plaintiffs' deeds.

Accordingly, defendants' motions to dismiss pursuant to CPLR 3211(a)(1), (a)(3), and (a)(7) are granted. The notices of pendency filed against the subject properties are hereby canceled. The claims asserted against the individual defendants are dismissed, and the Peacock Point Property Owners Association, Inc. is dismissed as a plaintiff in this action. Any other relief requested is denied.

This constitutes the decision and order of the court.