March 21, 2014
WILLIAM M. HOLST, LARRY J. PIERCE, LILLIAN BRAUNBACH, DAVID P. MARTIN, LINDA ZGODA-MARTIN, MARY E. PANKOW, STEVEN SMITH, ROBIN MARIE SMITH, ROBERT J. MARTIN, CARRIE A. MARTIN, DAVID S. WINNERT, MICHELE MUELLER, KENNETH J. ULICKI AND MARILYN M. ULICKI, PLAINTIFFS-RESPONDENTS,
VICTOR LIBERATORE AND SALLY LIBERATORE, DEFENDANTS-APPELLANTS.
Appeal from an order and judgment (one paper) of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered December 4, 2012. The order and judgment, insofar as appealed from, granted the motion of plaintiffs for summary judgment.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (RALPH C. LORIGO OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
GOODELL & RANKIN, JAMESTOWN (ANDREW W. GOODELL OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking injunctive and other relief regarding their right to use an easement over defendants' property. Supreme Court properly grantedplaintiffs' motion seeking summary judgment and permanently enjoined defendants from interfering with, blocking, or hindering in any manner the reasonable and incidental use of the right-of-way over defendants' property. The deeds, surveys, maps, and " pertinent surrounding circumstances' " established that certain plaintiffs have a right-of-way to access Chautauqua Lake over the western portion of defendants' property, as described in a deed granted to defendants' predecessor in 1971 (Mertowski v Werthman, 45 A.D.3d 1312, 1313). The court also properly concluded that the use of the easement included plaintiffs' placement of docks in the water, because that was a " reasonable use incidental to the purpose of the easement' " (Hush v Taylor, 84 A.D.3d 1532, 1535; see Monahan v Hampton Point Assn., 264 A.D.2d 764, 764).
In opposition to the motion, defendants argued that the action should be dismissed because plaintiffs filed an order to show cause and complaint, rather than a summons and complaint (see generally CPLR 304 [a]). Plaintiffs' failure to file a summons was a defect in personal jurisdiction, which defendants waived by failing to raise it in their answer or amended answer (cf. Goldenberg v Westchester County Health Care Corp., 16 N.Y.3d 323, 327). Defendants further argued in opposition to the motion that plaintiffs failed to join as necessary parties other property owners who had the same right-of-way language in their deeds as certain plaintiffs in this case. That contention, however, was rejected by us on a prior appeal (Holst v Liberatore, 105 A.D.3d 1374, 1375), and our holding constitutes the law of the case (see Kaufmann's Carousel, Inc. v Carousel Ctr. Co. LP, 87 A.D.3d 1343, 1344-1345, lv dismissed 18 N.Y.3d 975, rearg denied 19 N.Y.3d 938). We reject defendants' contention in opposition to the motion that plaintiffs also failed to join as a necessary party a property owner who had the same right-of-way language in its deed as defendants. Plaintiffs were not seeking to use an easement over that nonparty's property but, rather, they seek to use the easement only on defendants' property. Therefore, that nonparty's interests would not be inequitablyaffected by the resolution of this action (see CPLR 1001 [a]; Ellison Hgts. Homeowners Assn., Inc. v Ellison Hgts. LLC, 112 A.D.3d 1302, 1305).