SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

406 

CA 15-01482 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ. 

 

CARL HASSELBACK, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

2055 WALDEN AVENUE, INC., AND RONALD BENDERSON 

AND DAVID BALDAUF, AS TRUSTEES UNDER A TRUST 

AGREEMENT DATED SEPTEMBER 22, 1993, KNOWN AS 

THE RANDALL BENDERSON 1993-1 TRUST, 

INTERVENORS-DEFENDANTS-APPELLANTS.

 

WHITEMAN OSTERMAN & HANNA LLP, ALBANY (JOHN J. HENRY OF COUNSEL), FOR

INTERVENORS-DEFENDANTS-APPELLANTS. 

THE MCGORRY LAW FIRM, LLP, BUFFALO (MICHAEL P.J. MCGORRY OF COUNSEL),

FOR PLAINTIFF-RESPONDENT. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Erie County (Timothy J. Walker, A.J.), entered April 1, 2015. The

judgment, among other things, granted plaintiff’s motion for summary

judgment and denied intervenors-defendants’ motion for partial summary

judgment. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law without costs, plaintiff’s motion is

denied, the motion of the intervenors-defendants is granted and

partial judgment is granted in favor of the intervenors-defendants as

follows:

It is ADJUDGED AND DECLARED that the intervenorsdefendants are entitled to make improvements to the leased

parcel provided that such improvements do not unreasonably

interfere with plaintiff’s use of the burdened parcel for

ingress and egress to and from plaintiff’s property. 

Memorandum: Plaintiff commenced a special proceeding, which has

since been converted into an action, against the owner of an 18-acre

parcel of property (larger parcel) upon which was situated a 2.4 acre

parcel burdened by an easement in favor of plaintiff (burdened

parcel). Plaintiff sought to enjoin the owner from erecting any

“barriers, fencing, walls or the like within the easement area.” 

Supreme Court thereafter granted a motion by the intervenorsdefendants (hereafter, Benderson), to intervene as party defendants. 

Benderson leases 4.6 acres of the larger parcel (leased parcel), and

the burdened parcel is situated within that leased parcel. Once
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CA 15-01482 

Benderson entered the action, plaintiff discontinued its action

against the owner of the larger parcel. In its amended answer,

Benderson asserted two counterclaims seeking, inter alia, a

declaration “whether [its] proposed development . . . infringes upon

[plaintiff’s] claimed rights” in the burdened parcel. 

Plaintiff moved for summary judgment “permanently enjoining and

restraining [Benderson] from erecting or causing to be erected any

barriers, fencing, walls or the like” on the burdened parcel as well

as “prohibiting and permanently enjoining [Benderson] from blocking

Plaintiff’s access or use in any way” of the burdened parcel. 

Plaintiff contended that any type of structure built on the burdened

parcel would prevent his customers from accessing his property.

Benderson moved for partial summary judgment declaring that

Benderson is permitted, inter alia, “to make improvements to the

[leased parcel], so long as the improvements do not unreasonably

interfere with [p]laintiff’s use of the [burdened parcel] for ingress

and egress” to and from plaintiff’s property. Of particular note,

Benderson specifically stated that it was “not seeking summary

judgment declaring that its particular proposed use [was] allowable

under the easement.” Instead, Benderson conceded that “the factsensitive inquiry of whether Benderson’s plan . . . unreasonably

interfere[d] with [p]laintiff’s right of ingress and egress must await

trial.”

At oral argument of the motions, the parties stipulated that the

deed containing the easement language was “unambiguous” and that its

interpretation was “a matter of law to be determined by the court.” 

The parties also specified that neither plaintiff nor Benderson had

moved for summary judgment on the issue whether Benderson’s proposed

development would unreasonably interfere with plaintiff’s rights under

the easement.

In its order, the court concluded that the unambiguous language

of the easement permitted improvements on the easement parcel. The

court further concluded that Benderson’s proposed improvements would

“unduly impair [p]laintiff’s right of passage over the [b]urdened

[p]arcel.” In the first decretal paragraph, however, the court

ordered that it was granting plaintiff’s motion “in its entirety” and

declared that Benderson did not “possess the right to construct the

[p]roposed [i]mprovement on the [b]urdened [p]arcel, because it would

unduly impair [p]laintiff’s right of passage over it.”

As a preliminary matter, we agree with Benderson that the court

erred in rendering any decision on the reasonableness of the proposed

improvement. It is well settled that, “[u]nless public policy is

violated, the parties are free to chart their own procedural course,

and may fashion the basis upon which a particular controversy will be

resolved . . . Thus, [p]arties may by stipulation shape the facts to

be determined at trial and . . . circumscribe the relevant issues for

the court” (Loretto-Utica Props. Corp. v Douglas Co., 226 AD2d 1058,

1059 [internal quotation marks omitted]; see Mitchell v New York

Hosp., 61 NY2d 208, 214). Due to the limited scope of the respective
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CA 15-01482 

motions, the court erred in rendering any decision on the

reasonableness of the proposed improvement. In any event, the record

establishes that there are triable issues of fact whether the proposed

development unduly impairs plaintiff’s right of ingress and egress

over the burdened parcel.

Plaintiff contends, in response to Benderson’s appeal, that the

court erred in determining that the language of the easement permitted

any improvements on the burdened parcel. Contrary to Benderson’s

contention, plaintiff is permitted to address that issue. Here,

despite the language in the body of its decision and order, the court

“ordered” that plaintiff’s motion for summary judgment was granted “in

its entirety.” As a result, plaintiff was not aggrieved by the order

and could not appeal (see CPLR 5511). Pursuant to CPLR 5501 (a) (1),

a respondent on appeal may “obtain review of a determination

incorrectly rendered below where, otherwise, he [or she] might suffer

a reversal of the final judgment or order upon some other ground. 

Hence, the successful party, who is not aggrieved by the judgment or

order appealed from and who, therefore, has no right to bring an

appeal, is entitled to raise an error made below, for review by the

appellate court, as long as that error has been properly preserved and

would, if corrected, support a judgment in his [or her] favor”

(Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,

545-546; see Town of Massena v Niagara Mohawk Power Corp., 45 NY2d

482, 488). We thus address the merits of plaintiff’s contention.

On the merits, however, we reject plaintiff’s contention. Due to

the stipulation of the parties that the language of the easement was

unambiguous, we are constrained to review only the language contained

within the four corners of the instrument (see Beal Sav. Bank v

Sommer, 8 NY3d 318, 324; W.W.W. Assoc. v Giancontieri, 77 NY2d 157,

162). Although the deed containing the easement excepted and reserved

an easement “across and over the entire [burdened parcel] for the

purpose of free ingress and egress” (emphasis added), subject to two

conditions not relevant here, the deed also contained a restriction

precluding the erection of any structure or the operation of any

business on the burdened parcel that sold or dispensed liquid vehicle

fuel. “ ‘Under the standard canon of contract construction expressio

unius est exclusio alterius, that is, that the expression of one thing

implies the exclusion of the other’ ” (Mastrocovo v Capizzi, 87 AD3d

1296, 1298), the fact that the deed specifically prohibited the

erection of one particular type of structure and the operation of one

particular type of business compels us to conclude that the erection

of other types of structures and the operation of other types of

businesses are not so precluded. If the parties to the deed had

intended to preclude the erection of all structures and the operation

of all businesses, then the reference to those structures or

businesses that sold or dispensed liquid vehicle fuel “would have been

unnecessary” (Realtime Data, LLC v Melone, 104 AD3d 748, 751; see

generally Matter of New York City Asbestos Litig., 41 AD3d 299, 302). 

Plaintiff contends that the restriction applied to the entirety

of the larger parcel, but that contention is not supported by the

language of the deed containing the easement. Rather, plaintiff’s
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CA 15-01482 

contention is based on extrinsic evidence. It is well settled that

“[e]vidence outside the four corners of the document as to what was

really intended but unstated or misstated is generally inadmissible to

add to or vary the writing” (W.W.W. Assoc., 77 NY2d at 162; see Alt v

Laga, 207 AD2d 971, 971).

We thus conclude that the intent of the easement was to provide

plaintiff “only a right of ingress and egress, [and as a result], it

[was] the right of passage, and not any right in a physical passageway

itself, that [was] granted to the easement holder” (Lewis v Young, 92

NY2d 443, 449). Benderson, as the leaseholder of the parcel burdened

by an express easement of ingress and egress may therefore “narrow it,

cover it over, gate it or fence it off, so long as the [plaintiff’s]

right of passage is not impaired” (id.). The issue whether

Benderson’s proposed development will impair plaintiff’s right of

passage must be determined at trial.

Entered: May 6, 2016 Frances E. Cafarell

Clerk of the Court