State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522591 

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JOSEPH V. ANZALONE JR.,

Respondent,

v MEMORANDUM AND ORDER

DIANA COSTANTINO et al.,

Appellants.

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Calendar Date: October 20, 2016

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

__________

Van DeWater & Van DeWater, LLP, Poughkeepsie (Janis M.

Gomez Anderson of counsel), for appellants.

Handel & Carlini, LLP, Wappingers Falls (Anthony C. Carlini

Jr. of counsel), for respondent.

__________

Devine, J.

Appeal from a judgment of the Supreme Court (Work, J.),

entered March 17, 2015 in Ulster County, upon a decision of the

court in favor of plaintiff.

Defendant Catherine Costantino owns a life estate, and

defendants Diana Costantino, Paul Costantino and Kathleen Kouri

(hereinafter the remainderpersons) hold the remainder interest,

in real property in the Town of Lloyd, Ulster County. Defendants

have an easement over plaintiff's adjacent parcel that entitles

them to use a driveway to access garages at the rear of their

property, but the relevant conveyance, recorded in 1988, gave a

metes and bounds description that placed the easement on another

parcel. Plaintiff acquired his property in 2001 and was not

involved in a 2005 effort by Catherine Costantino and others to
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correct the description in the 1988 conveyance. 

Plaintiff made a series of changes to the driveway,

culminating in the construction of a retaining wall in 2012 that

allegedly made it more difficult for defendants to use it. 

Plaintiff then commenced this action seeking a declaration either

that the right-of-way was invalid or that he had not

impermissibly interfered with it, as well as injunctive relief

and damages. The remainderpersons answered and counterclaimed

for various relief, while Catherine Costantino, who was joined as

a party defendant at a late date, entered an oral denial. 

Supreme Court conducted a nonjury trial, after which it was

determined that the 1988 conveyance created an enforceable

easement that was not unequivocally fixed in location. Supreme

Court further determined that the 2005 effort to correct the 1988

conveyance was invalid, found that plaintiff had not impaired

defendants' right of ingress and egress by altering the driveway

and fixed the boundaries of the right-of-way along the current

driveway. The remaining relief sought by the parties was denied,

and defendants appeal from the ensuing judgment.

We affirm. To begin, "[i]n the absence of a claim for

reformation, courts may as a matter of interpretation" transpose,

reject or supply words in a contract or conveyance in order to

effectuate the intent of the agreement if "some absurdity has

been identified or the contract would otherwise be unenforceable

either in whole or in part" (Matter of Wallace v 600 Partners

Co., 86 NY2d 543, 547-548 [1995]; see Meyer v Stout, 79 AD3d

1666, 1667-1668 [2010]). Supreme Court did so here because the

use of the metes and bounds description in the 1988 conveyance

would have led to the absurd result of a right-of-way being

granted over property that the grantor did not own, and preserved

the stated intent of creating a right-of-way "for the purpose of

ingress and egress" by jettisoning the defective description (see

Al's Atl., Inc. v Shatma, LLC, 109 AD3d 491, 492 [2013]). 

Defendants did not preserve for our review their argument that

Supreme Court should have gone further and supplied a new metes

and bounds description to the 1988 conveyance as a matter of

interpretation (see Spilman-Conklin v Conklin, 11 AD3d 798, 801

[2004]; Maricevic v Prober, 305 AD2d 834, 834-835 [2003]). In

any event, Supreme Court observed that the proof does not reveal
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what metes and bounds description the parties to the 1988

conveyance actually intended to use and, as a result, any

"interpretation" of the conveyance in that regard would have been

speculative and inappropriate. 

Defendants accordingly have a right-of-way over plaintiff's

property but, inasmuch as it lacks a specific metes and bounds

description or other expression to the contrary, plaintiff is

free to unilaterally relocate it "so long as the change does not

frustrate the parties' intent or object in creating the right of

way, does not increase the burden on the easement holder, and

does not significantly lessen the utility of the right of way"

(Lewis v Young, 92 NY2d 443, 452 [1998]; see Boice v Hirschbihl,

128 AD3d 1215, 1216-1217 [2015]; MacKinnon v Croyle, 72 AD3d

1356, 1357 [2010]). Here, plaintiff and his expert engineer both

testified that the roadbed of the driveway was approximately 10

feet wide before any changes were made to it, and defendants'

backyard garages could only accommodate vehicles of that width. 

Plaintiff's expert testified that the driveway was 12 feet wide

after the retaining wall was constructed and opined that it

continued to provide adequate ingress and egress to defendants'

back yard, an opinion that defendants' expert declined to

dispute. Indeed, small trucks and cars could and did use the

modified driveway, and larger vehicles are able to access

defendants' property by another route. Supreme Court credited

this proof that defendants' right of access was not impaired and,

according due deference to that determination, we perceive no

reason to disturb the determination that plaintiff was free to

alter the driveway as he did (see Thibodeau v Martin, 119 AD3d

1015, 1016 [2014]; Chekijian v Mans, 34 AD3d 1029, 1032-1033

[2006], lv denied 8 NY3d 806 [2007]; see also Boice v Hirschbihl,

128 AD3d at 1217-1218). 

Defendants lastly assert that they are entitled to a

prescriptive easement over plaintiff's property. To the extent

that claim is properly before us, it need only be said that

defendants' "use pursuant to an express easement granting an

undefined right-of-way . . . 'is neither hostile nor adverse

. . . [and] does not in and of itself fix an otherwise undefined

location so as to enlarge the interest of the easement holder or

reduce the interest of the landowner'" by prescription (Estate
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Ct., LLC v Schnall, 49 AD3d 1076, 1077 [2008], quoting Lewis v

Young, 92 NY2d at 452-453).

McCarthy, J.P., Lynch, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court