        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 intervenors-
     defendants 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 intervenors-
defendants (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 fact-
sensitive 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
