                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 14, 2015                      519949
________________________________

FLORENCE J. BOICE,
   Individually and as
   Executor of the ESTATE OF
   EMMA H. BOICE, Deceased
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ANGELICA HIRSCHBIHL et al.,
                    Respondents.
________________________________


Calendar Date:   March 27, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Dennis B. Schlenker, Albany, and Law Office of John D.
Hoggan, PLLC, Albany (John D. Hoggan Jr. of counsel), for
appellant.

      Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Justin
W. Gray of counsel), for respondents.

                             __________


Clark, J.

      Appeal from an order of the Supreme Court (McGrath, J.),
entered January 9, 2014 in Columbia County, which, among other
things, partially granted defendants' motion for summary judgment
dismissing the complaint.

      Plaintiff and defendants own adjoining parcels of land in
the Town of Germantown, Columbia County and share possession of a
15-foot-wide right-of-way over property owned by members of the
McLean family (hereinafter the McLean property), which allows the
parties ingress and egress to their respective premises. At the
                              -2-                519949

time that defendants acquired their property, plaintiff's mother,
Emma H. Boice (hereinafter decedent), resided at the adjoining
property. In 2002, defendants – purportedly with decedent's
permission and cooperation – installed an antique gate on the
McLean property within the area of the right-of-way and, the
following year, constructed a small balustrade next to the gate.
Following decedent's death in October 2008, plaintiff inherited
the property and began to reside there.

      Plaintiff commenced this action in November 2009 sounding
in, among other things,1 wrongful interference, nuisance and
trespass, seeking punitive damages and a declaratory judgment
compelling the removal of various obstructions that she alleges
defendants created within the area of the right-of-way, including
shrubbery and split rail fences, a stone retaining wall and the
aforementioned balustrade and gate, which plaintiff claimed was
often chained and locked. Defendants moved for summary judgment
dismissing plaintiff's complaint arguing, among other things,
that there had been no unreasonable interference with plaintiff's
use of the right-of-way. Supreme Court partially granted
defendants' motion, finding that issues of fact existed as to
whether defendants had chained and/or locked the gate on the
right-of-way, thus interfering with plaintiff's use thereof.
Plaintiff appeals from so much of the court's order as dismissed
her other claims.

      We affirm. It is well settled that "[t]he extent and
nature of an easement must be determined by the language
contained in the grant, aided where necessary by any
circumstances tending to manifest the intent of the parties"
(Sambrook v Sierocki, 53 AD3d 817, 818 [2008] [internal quotation
marks and citations omitted]; accord Raven Indus., Inc. v Irvine,
40 AD3d 1241, 1242 [2007]; Hopper v Friery, 260 AD2d 964, 966
[1999]). Here, the easement specifically granted plaintiff and


    1
        In her opposition papers to defendants' motion for
summary judgment, plaintiff withdrew her claims sounding in
devaluation of real property interests, forcible or unlawful
entry upon property, and removal, destruction and damage to
trees.
                              -3-                519949

defendants the right of "ingress and egress and for electric,
gas, water, sewer and similar services over, under and along
[the] farm road" on the McLean property. Importantly then, "[a]
right of way along a private road belonging to another person
does not give the [easement holder] a right that the road shall
be in no respect altered or the width decreased, for his [or her]
right . . . is merely a right to pass with the convenience to
which he [or she] has been accustomed" (Lewis v Young, 92 NY2d
443, 449 [1998] [internal quotation marks and citations
omitted]). In the absence of a demonstrated intent to provide
otherwise, an easement of ingress and egress may be narrowed,
covered, gated or fenced off, "'so long as the easement holder's
right of passage is not impaired'" (Thibodeau v Martin, 119 AD3d
1015, 1016 [2014], quoting Lewis v Young, 92 NY2d at 449; accord
Sambrook v Sierocki, 53 AD3d at 818). Although plaintiff
unpersuasively contends otherwise, the aforementioned standard
also applies where the parties share access to a common
right-of-way and one party makes alterations thereon (see e.g.
Williams v McNee, 80 AD3d 1020, 1021 [2011]; see also 5-40
Warren's Weed, New York Real Property § 40.70 [4] [2014]).

      Aside from the question of whether defendants had chained
and/or locked the gate, which presents a separate issue more
appropriately reserved for the finder of fact (see e.g. STS
Steel, Inc. v Maxon Alco Holdings, LLC, 123 AD3d 1260, 1262
[2014]), the record before us supports the partial granting of
defendants' motion for summary judgment. More particularly,
photographs in the record clearly demonstrate that the shrubbery
and split rail fences are not within the portion of the easement
used for ingress or egress. Additionally, plaintiff herself
testified that the shrubbery has never interfered with her right
to ingress and egress from her property while the fence posts
have merely created an "uncomfortable turn." Likewise, a survey
in the record demonstrates that the stone retaining wall is not
located within the area of the right-of-way and, according to
plaintiff, has not yet impaired her ingress and egress.

      Although it is undisputed that both the gate and balustrade
are within the area of the common right-of-way, the record is
nonetheless insufficient to create an issue of fact as to the
impairment of plaintiff's use thereof. The gate, which
                                -4-                519949

apparently weighs 80 pounds on each side, bisects the easement
beyond each of the parties' homes, separating the gravel portion
used to approach the homes from the grass-covered portion that
curves and extends down an embankment behind plaintiff's
residence. Plaintiff testified that she is able to open the gate
and walk through it – which she does approximately once each
year.2 Additionally, large vehicles, such as vans and pick-up
trucks, are able to be driven through the gate, although such
task does require the driver to first exit the vehicle and open
the gate if it happens to be closed. Inasmuch as plaintiff's
testimony that larger vehicles – for example, a vehicle used for
making pool repairs – may not be able to use the right-of-way to
access the rear of her property should the need arise, we agree
with Supreme Court that such speculation, without more, is
insufficient to satisfy plaintiff's shifted burden. Thus, the
record before us supports the finding that plaintiff's use of the
common right-of-way has not been impaired by defendants'
construction of the gate or balustrade (see Lewis v Young, 92
NY2d at 449-450; Williams v McNee, 80 AD3d at 1021; Sambrook v
Sierocki, 53 AD3d at 818). Based on the record before us,
dismissal of plaintiff's nuisance and trespass claims was also
warranted (see Schillaci v Sarris, 122 AD3d 1085, 1087-1088
[2014]). Accordingly, we find no reason to reverse the order of
Supreme Court.

        Garry, J.P., Egan Jr. and Lynch, JJ., concur.




    2
        To be clear, walking through the gate is only one of a
variety of ways that plaintiff is able to access the rear of her
property on foot.
                        -5-                  519949

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
