                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   521245
________________________________

ROBERT SHELMERDINE et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

NANCY MYERS,
                    Appellant.
________________________________


Calendar Date:   September 15, 2016

Before:   Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


     Nicholas E. Tishler, Niskayuna, for appellant.

     Michael W. Smrtic, Gloversville, for respondents.

                             __________


Peters, P.J.

      Appeals (1) from an order and judgment of the Supreme Court
(Nolan Jr., J.), entered November 26, 2014 in Saratoga County,
upon a decision of the court in favor of plaintiffs, and (2) from
an order of said court, entered March 12, 2015 in Saratoga
County, which denied defendant's motions to set aside the verdict
and for reargument and/or renewal.

      Plaintiffs and defendant own neighboring parcels of real
property near Sacandaga Lake in the Town of Edinburg, Saratoga
County. In 1996, plaintiffs and defendant's predecessor-in-
interest entered into a written agreement whereby they mutually
agreed to allow one another and their heirs and assigns, for a
period of 99 years, "the right to ingress and egress their
properties and tool sheds" over a strip of land situated between
the parties' homes. After acquiring her parcel in 2012,
defendant constructed a new residence on the property and, in so
                                 -2-                521245

doing, erected an earthen berm and retaining rock wall that
substantially encroached onto the mutual easement. Plaintiffs
thereafter commenced this action seeking, among other things,1 an
order directing defendant to remove the berm. Following a
nonjury trial, Supreme Court found defendant's actions to have
unreasonably interfered with plaintiffs' rights under the
easement and directed defendant to remove the berm and rock wall
and restore the side yard to its previous condition. The court
denied defendant's subsequent motions to set aside the judgment
and for leave to reargue and/or renew, and these appeals by
defendant ensued.

      It is well established 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 Boice v Hirschbihl, 128 AD3d 1215, 1216 [2015]). Where,
as here, "the extent of a right-of-way is not specified, it is
construed to be that which is necessary for the use for which it
was created" (Taverni v Broderick, 111 AD3d 1197, 1199-1200
[2013] [internal quotation marks and citations omitted]; see
Phillips v Iadarola, 81 AD3d 1234, 1235 [2011]). While a
landowner burdened by an easement of ingress and egress may
narrow it or cover it, "'the change [must] not frustrate the
parties' intent or object in creating the right[-]of[-]way, must
not increase the burden on the easement holder, and must not
significantly lessen the utility of the right[-]of[-]way'"
(MacKinnon v Croyle, 72 AD3d 1356, 1358 [2010], quoting Lewis v
Young, 92 NY2d 443, 452 [1998]; see Thibodeau v Martin, 119 AD3d
1015, 1016 [2014]; Marek v Woodcock, 277 AD2d 864, 866 [2000], lv
dismissed 96 NY2d 792 [2001]). That is, "a landowner may not
unilaterally change a right[-]of[-]way if that change impairs
[the] enjoyment of the easement holder's rights" (Lewis v Young,
92 NY2d at 452).

         Here, as reflected in the language of the grant and


     1
        Although plaintiffs also asserted causes of action for
trespass and nuisance, they later withdrew those claims.
                              -3-                521245

confirmed by the parties' trial testimony, the purpose of the
easement's creation was to allow the owners of these adjoining
properties to travel over and upon each other's abutting side
yard to access their respective backyards and sheds and to
transport boats, machinery and equipment between the front and
back of their homes. Photographs admitted into evidence at the
trial reveal that the berm at issue is at least two feet high,
slopes in a downward direction and extends to within 10 inches of
plaintiffs' exterior side stairway. Plaintiffs presented
detailed testimony regarding the manner in which defendant's
installation of the berm and rock wall impaired the access to
their backyard and their ability to move items such as a grill,
compressor, power washer, lawn mower, wheelbarrow, rowboat and
kayaks from their backyard shed to the front of the house.
Although defendant claimed that the alterations did not lessen
the utility of the easement area or restrict plaintiffs' access,
Supreme Court credited plaintiffs' proof to the contrary and we
find no basis upon which to disturb that assessment (see
MacKinnon v Croyle, 72 AD3d at 1358; Chekijian v Mans, 34 AD3d
1029, 1031 [2006], lv denied 8 NY3d 806 [2007]). Further,
defendant failed to proffer any evidence to support her claim
that construction of the berm was necessary to protect the home's
foundation. Inasmuch as defendant's alterations "substantially
interfered with [plaintiffs'] reasonable use and enjoyment of the
right-of-way in light of the convenience to which they had become
accustomed" (Marek v Woodcock, 277 AD2d at 866), Supreme Court
properly directed that the berm and rock wall be removed and the
easement area restored to its prior condition (see MacKinnon v
Croyle, 72 AD3d at 1358).

      Defendant's challenges to the denial of her posttrial
motions are similarly unavailing. With respect to her CPLR 4404
(b) motion to set aside the judgment, "[t]he statute leaves the
circumstances for granting such relief to the discretion of the
court, and its decision whether to grant the motion will not be
disturbed absent an abuse of that discretion" (Matter of Ramsey
H. [Benjamin K.], 99 AD3d 1040, 1043 [2012] [citations omitted],
lv denied 20 NY3d 858 [2013]; see Micallef v Miehle Co., Div. of
Miehle-Goss Dexter, 39 NY2d 376, 381 [1976]). In support of the
motion, defendant offered the affidavit of an engineer who opined
that removal of the berm and rock wall "would severely compromise
                                -4-                  521245

the foundation and structure of the building." While defendant
claims that this is new evidence, the record reflects that,
during a pretrial hearing on plaintiffs' application for a
preliminary injunction, defendant's counsel argued that the berm
and rock wall were necessary to ensure the "structural integrity
of [the] home" and indicated that defendant would be proffering
the opinion of an engineer to support that position. However, no
such testimony was offered at the ensuing trial, nor did
defendant proffer an explanation for her failure to do so or
present any other evidence to support her claim regarding the
necessity of the existing berm. Under such circumstances,
Supreme Court properly exercised its discretion in declining to
set aside its decision or order a new trial (see Turco v Turco,
117 AD3d 719, 723 [2014]; Matter of Ramsey H. [Benjamin K.], 99
AD3d at 1043; Matter of Xuong Trieu v Tax Appeals Trib. of State
of N.Y., 222 AD2d 743, 745 [1995], appeal dismissed 87 NY2d 1054
[1996], lv denied 88 NY2d 809 [1996]). Finally, defendant's
motion to renew – which duplicated the arguments made in her
motion to set aside the judgment – was also properly denied (see
generally Paterno v Strimling, 107 AD3d 1233, 1234 [2013];
Carr-Harris v Carr-Harris, 98 AD3d 548, 551 [2012]).2

        Egan Jr., Lynch, Rose and Aarons, JJ., concur.


      ORDERED that the order and judgment and order are affirmed,
with costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court


    2
        To the extent that this motion sought reargument, the
denial of such a motion is not appealable (see Neroni v
Follender, 137 AD3d 1336, 1339 [2016], appeal dismissed 27 NY3d
1147 [2016]).
