SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

285 

CA 15-01006 

PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ. 

 

MARK ALLEN SHAW, ET AL., PLAINTIFFS, 

AND JOSEPH G. TERRIZZI, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CHESTER VANARSDALE, DEFENDANT-APPELLANT. 

(APPEAL NO. 2.)

 

GOODELL & RANKIN, JAMESTOWN (ANDREW W. GOODELL OF COUNSEL), FOR

DEFENDANT-APPELLANT.

PETER D. CLARK, FREDONIA, FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Chautauqua County

(Deborah A. Chimes, J.), entered January 30, 2015. The order adhered

to an order entered October 17, 2014. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiff-respondent (plaintiff), et al., commenced

this action seeking to enjoin defendant from, inter alia, maintaining

a dock at the shore of Chautauqua Lake at the terminus of a “paper

street” known as Elmwood Avenue in the Windemere subdivision. 

Following a nonjury trial on stipulated exhibits and a stipulation

that there were no issues of fact, Supreme Court permanently enjoined

defendant from, inter alia, placing a dock in the waters abutting

Elmwood Avenue, using Elmwood Avenue to store personal items, and from

constructing any further structures thereupon. 

In appeal No. 1, defendant appeals from an order that granted

plaintiffs injunctive relief following the trial. In appeal No. 2,

defendant appeals from an order that denied his motion that, although

styled as one to “reargue and reconsider,” was in effect a motion to

set aside the verdict pursuant to CPLR 4404 (b) (see Matter of Hickey,

252 AD2d 763, 764, lv dismissed 92 NY2d 979). We note at the outset

that defendant’s appeal from the order in appeal No. 1 must be

dismissed because it was superseded by the order in appeal No. 2 (see

Hores v State of New York, 212 AD2d 581).

With respect to appeal No. 2, we note that defendant is not a

riparian landowner, and that his deed contains no express easement to

access Chautauqua Lake (cf. Holst v Liberatore, 115 AD3d 1216, 1216-

1217; Hush v Taylor, 84 AD3d 1532, 1533-1534). The record
-2- 285 

CA 15-01006 

establishes, however, that the common grantor filed a subdivision map

in which certain streets, including Elmwood Avenue, were laid out but

never accepted by the municipality, and that defendant’s lots abut

Elmwood Avenue. In addition, the parties agree that defendant’s lots

benefit from a “paper street” easement over Elmwood Avenue (see

generally Fischer v Liebman, 137 AD2d 485, 486-487). The stipulated

exhibits establish that Elmwood Avenue provides access to Park Street,

an intersecting “paper street,” which in turn provides access to a

public way. Despite the fact that defendant’s lots do not abut

Chautauqua Lake, defendant installed a dock at the terminus of Elmwood

Avenue at the lakeshore and undertook the storage of various items at

the lakeshore on the “paper street,” including hammocks, chairs,

torches, paddle boats, etc. 

We reject defendant’s contention that the implied easement

created by the “paper street” doctrine entitles him to install a dock

or to store his personal property on Elmwood Avenue at the lakeshore. 

An implied “paper street” easement does not “create a right of way

over all the lands of a vendor which may lie, however remote, in the

bed of the street. The lands must be contiguous to the lot sold, and

there must be some point of limitation” (Reis v City of New York, 188

NY 58, 73). Here, inasmuch as the parties have not raised the issue

whether the implied “paper street” easement created by the laying out

of Elmwood Avenue on the subdivision map provides defendant with the

right to otherwise access Chautauqua Lake at the terminus of Elmwood

Avenue, we do not reach that issue. We conclude, however, that the

court properly determined that the implied easement benefitting

defendant’s lots in the subdivision does not carry with it the right

to install a dock or to store personal property at the lakeshore (see

id.). 

We reject defendant’s further contention that plaintiff is

estopped by the doctrine of unclean hands from objecting to the

placement of defendant’s dock because plaintiff allegedly maintained a

dock on a “paper street” in the subdivision in the past. Plaintiff

testified, however, that he placed his dock on his own lakefront

property, and defendant failed to adduce any evidence conclusively

establishing that plaintiff’s dock was installed on a “paper street”

in the subdivision. We therefore conclude that there is no basis for

a finding that plaintiff did not come to this equitable action with

clean hands (see Sparkling Waters Lakefront Assn., Inc. v Shaw, 42

AD3d 801, 804). 

We have considered defendant’s remaining contentions and conclude

that they are without merit.

Entered: April 29, 2016 Frances E. Cafarell

Clerk of the Court