                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   514735
________________________________

SHAHYER HUSSAIN, as
   Administrator of the Estate
   of YASMEEN BEGUM, Deceased,
   et al.,
                    Appellants,             MEMORANDUM AND ORDER
      v

COUNTY OF SARATOGA et al.,
                    Respondents.
________________________________


Calendar Date:   September 2, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Devine, JJ.

                             __________


      Tabner, Ryan & Keniry, LLP, Albany (Dana L. Salazar of
counsel), for appellants.

      Bailey, Kelleher & Johnson, PC, Albany (Marc J. Kaim of
counsel), for County of Saratoga, respondent.

      Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Thomas A.
Cullen of counsel), for Trinity Construction, Inc., respondent.

      Miller, Mannix, Schachner & Haffner, LLC, Glens Falls (Leah
Everhart of counsel), for Saratoga County Water Authority,
respondent.

      Goldberg Segalla, LLP, Albany (Mark P. Donohue of counsel),
for Malcolm Pirnie, Inc., respondent.

                             __________
                              -2-                514735

Lahtinen, J.P.

      Appeals from two orders of the Supreme Court (Crowell, J.),
entered February 28, 2012 and April 19, 2012 in Saratoga County,
which, among other things, granted defendants' motions for
summary judgment dismissing the complaint.

      Yasmeen Begum (hereinafter decedent)1 owned property upon
which she and plaintiff Shahed Hussain (hereinafter Hussain)
operated a 12-unit motel in the Town of Wilton, Saratoga County.
In 2007, decedent sold a permanent right-of-way and easement to
defendant County of Saratoga for placement of an underground
three-foot diameter water main as part of a county-wide drinking
water project.2 The easement ran generally north-south along the
east edge of decedent's property near an area where several old
cabins were located. The cabins had not been used for many years
and were dilapidated with no water or electricity. During
construction of the water project and within the easement, the
contractor came upon an antiquated septic system apparently
associated with the cabins. A rusted drum and several pipes were
eventually removed from the easement area and not replaced.

      Hussain and decedent commenced this action alleging, among
other things, that defendants were obligated to replace the
septic system. Defendants moved for summary judgment dismissing
the complaint and Hussain and decedent cross-moved for partial
summary judgment on the issue of liability. Following oral
argument on the motions, Supreme Court granted summary judgment
to three defendants from the bench and, after further
submissions, granted the motion of the remaining defendant.
Plaintiffs appeal from both orders.


    1
        Decedent, who was a plaintiff, passed away while this
appeal was pending and we granted a motion to substitute Shahyer
Hussain, the administrator of decedent's estate, as a plaintiff.
    2
        The County assigned the easement to defendant Saratoga
County Water Authority. Defendant Malcolm Pirnie, Inc. designed
the water system and oversaw the project. Defendant Trinity
Construction, Inc. was the general contractor on the project.
                              -3-                514735

      We affirm. "'The 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'" (Albrechta v Broome County Indus. Dev. Agency, 274
AD2d 651, 651-652 [2000], quoting Hopper v Friery, 260 AD2d 964,
966 [1999]; accord Ketchuck v Town of Owego, 72 AD3d 1173, 1174
[2010]). The easement provides in relevant part that "[t]he
[g]rantee . . . may remove from within the boundaries of the
permanent easement . . . any obstruction which may interfere with
the access to or the installation, repairing, replacing,
maintaining the use of [the] water pipe line . . ., providing
that appropriate restoration or replacement is made." A
restoration provision sets forth the obligations of the grantee.
Significantly, it also includes an exception in that "the actual
area where the water pipe line, or appurtenances[,] are installed
will not be restored as it must function for its intended
purpose."

      Under the terms of the easement, defendants had the right
to remove the sewer system and they were not under any obligation
to replace it in the area where the water pipe was located.
Defendants further met their burden of establishing that they
were not required to construct a code-compliant sewer system on
another portion of the property to replace the removed antiquated
system that could not be lawfully used. Proof in such regard
included that, among other things, the cabins were uninhabitable
and had not been used as rentals for decades, the antiquated
sewer system was not grandfathered, and the sewer system could
not have been used because that type of system was no longer
permitted. If the cabins had been properly brought up to code
and made habitable, a new septic system would have been required
in another location on the property and the one removed by
defendants would have been of no benefit or value in such regard.
Further, defendants established that the 12-unit motel used a
separate sewer system that was located west of the cabins – not
in the easement or where defendants did any work – and, in fact,
the separate system was in an area where plaintiffs had been
doing work and piling debris. Plaintiffs failed to produce proof
other than speculation that the antiquated sewer system had any
value, that any pipe or other viable part of the separate sewer
system for the motel was in the easement and affected by the
                              -4-                  514735

construction, or that the system for the motel was damaged in any
respect by the construction. Summary judgment was thus properly
granted. The remaining arguments by plaintiffs have been
considered and are either academic or without merit.

     Stein, McCarthy, Rose and Devine, JJ., concur.



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
