SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

915 

CA 10-02477 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ. 

 

WILLIAM DAVID YOUNG, WILLIAM KRAMER, AND LISA 

PECORARO, INDIVIDUALLY AND ON THE BEHALF OF 

ALL PROPERTY OWNERS SIMILARLY SITUATED, 

PLAINTIFFS-RESPONDENTS, 

 

V MEMORANDUM AND ORDER

MICHAEL R. CROSBY, DEFENDANT-APPELLANT.

 

FELT EVANS, LLP, CLINTON (ANTHONY G. HALLAK OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

DAVID V. DELUCA, ROCHESTER, FOR PLAINTIFFS-RESPONDENTS.

Appeal from an order of the Supreme Court, Wayne County (John B.

Nesbitt, A.J.), entered March 5, 2010. The order, inter alia, denied

defendant’s cross motion for summary judgment and granted plaintiffs 

a preliminary injunction. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting that part of the cross

motion seeking summary judgment dismissing the first and third causes

of action and as modified the order is affirmed without costs. 

Memorandum: Plaintiffs commenced this action seeking, inter

alia, a determination that they have an easement by express or implied

grant or by prescription over a parcel of property owned by defendant. 

We note at the outset that plaintiffs’ cross appeal has been deemed

abandoned and dismissed by their failure to perfect it in a timely

fashion (see 22 NYCRR 1000.12 [b]; Bucklaew v Walters, 75 AD3d 1140,

1141). We therefore do not address the cross appeal.

We agree with defendant that Supreme Court erred in denying that

part of his cross motion seeking summary judgment dismissing the first

cause of action, alleging that plaintiffs have an easement by express

or implied grant over defendant’s parcel. Defendant established as a

matter of law that the dominant and servient parcels did not have a

common grantor (see Dichter v Devers, 68 AD3d 805, 806-807), and

plaintiffs failed to raise a triable issue of fact in opposition (see

generally Zuckerman v City of New York, 49 NY2d 557, 562). We also

agree with defendant that the court erred in denying that part of his

cross motion seeking summary judgment dismissing the third cause of

action, alleging that plaintiffs are entitled to an award of sanctions

pursuant to 22 NYCRR 130-1.1. “ ‘New York does not recognize a
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CA 10-02477 

separate cause of action to impose sanctions’ pursuant to 22 NYCRR 130

- 1.1 (c)” and, in any event, defendant’s conduct in defending the

action is not frivolous within the meaning of that rule (Schwartz v

Sayah, 72 AD3d 790, 792). We therefore modify the order accordingly. 

The court, however, properly denied that part of the cross motion

seeking summary judgment dismissing the second cause of action,

alleging that plaintiffs have a prescriptive easement over defendant’s

parcel. Defendant’s own submissions raise triable issues of fact with

respect to that cause of action (see Barra v Norfolk S. Ry. Co., 75

AD3d 821, 823-824; cf. King’s Ct. Rest., Inc. v Hurondel I, Inc., ___

AD3d ___ [Sept. 30, 2011]). Finally, we conclude that the court did

not abuse its discretion in granting plaintiffs’ motion insofar as it

sought a preliminary injunction, thereby preserving the status quo

pending a determination on the merits (see S.P.Q.R. Co., Inc. v United

Rockland Stairs, Inc., 57 AD3d 642; Moody v Filipowski, 146 AD2d 675,

678).

Entered: September 30, 2011 Patricia L. Morgan

Clerk of the Court