        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

285
CA 15-01006
PRESENT: WHALEN, P.J., CENTRA, CARNI, DEJOSEPH, AND TROUTMAN, JJ.


MARK ALLEN SHAW, ET AL., PLAINTIFFS,
AND JOSEPH G. TERRIZZI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CHESTER VANARSDALE, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


GOODELL & RANKIN, JAMESTOWN (ANDREW W. GOODELL OF COUNSEL), FOR
DEFENDANT-APPELLANT.

PETER D. CLARK, FREDONIA, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Chautauqua County
(Deborah A. Chimes, J.), entered January 30, 2015. The order adhered
to an order entered October 17, 2014.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff-respondent (plaintiff), et al., commenced
this action seeking to enjoin defendant from, inter alia, maintaining
a dock at the shore of Chautauqua Lake at the terminus of a “paper
street” known as Elmwood Avenue in the Windemere subdivision.
Following a nonjury trial on stipulated exhibits and a stipulation
that there were no issues of fact, Supreme Court permanently enjoined
defendant from, inter alia, placing a dock in the waters abutting
Elmwood Avenue, using Elmwood Avenue to store personal items, and from
constructing any further structures thereupon.

     In appeal No. 1, defendant appeals from an order that granted
plaintiffs injunctive relief following the trial. In appeal No. 2,
defendant appeals from an order that denied his motion that, although
styled as one to “reargue and reconsider,” was in effect a motion to
set aside the verdict pursuant to CPLR 4404 (b) (see Matter of Hickey,
252 AD2d 763, 764, lv dismissed 92 NY2d 979). We note at the outset
that defendant’s appeal from the order in appeal No. 1 must be
dismissed because it was superseded by the order in appeal No. 2 (see
Hores v State of New York, 212 AD2d 581).

     With respect to appeal No. 2, we note that defendant is not a
riparian landowner, and that his deed contains no express easement to
access Chautauqua Lake (cf. Holst v Liberatore, 115 AD3d 1216, 1216-
1217; Hush v Taylor, 84 AD3d 1532, 1533-1534). The record
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                                                         CA 15-01006

establishes, however, that the common grantor filed a subdivision map
in which certain streets, including Elmwood Avenue, were laid out but
never accepted by the municipality, and that defendant’s lots abut
Elmwood Avenue. In addition, the parties agree that defendant’s lots
benefit from a “paper street” easement over Elmwood Avenue (see
generally Fischer v Liebman, 137 AD2d 485, 486-487). The stipulated
exhibits establish that Elmwood Avenue provides access to Park Street,
an intersecting “paper street,” which in turn provides access to a
public way. Despite the fact that defendant’s lots do not abut
Chautauqua Lake, defendant installed a dock at the terminus of Elmwood
Avenue at the lakeshore and undertook the storage of various items at
the lakeshore on the “paper street,” including hammocks, chairs,
torches, paddle boats, etc.

      We reject defendant’s contention that the implied easement
created by the “paper street” doctrine entitles him to install a dock
or to store his personal property on Elmwood Avenue at the lakeshore.
An implied “paper street” easement does not “create a right of way
over all the lands of a vendor which may lie, however remote, in the
bed of the street. The lands must be contiguous to the lot sold, and
there must be some point of limitation” (Reis v City of New York, 188
NY 58, 73). Here, inasmuch as the parties have not raised the issue
whether the implied “paper street” easement created by the laying out
of Elmwood Avenue on the subdivision map provides defendant with the
right to otherwise access Chautauqua Lake at the terminus of Elmwood
Avenue, we do not reach that issue. We conclude, however, that the
court properly determined that the implied easement benefitting
defendant’s lots in the subdivision does not carry with it the right
to install a dock or to store personal property at the lakeshore (see
id.).

     We reject defendant’s further contention that plaintiff is
estopped by the doctrine of unclean hands from objecting to the
placement of defendant’s dock because plaintiff allegedly maintained a
dock on a “paper street” in the subdivision in the past. Plaintiff
testified, however, that he placed his dock on his own lakefront
property, and defendant failed to adduce any evidence conclusively
establishing that plaintiff’s dock was installed on a “paper street”
in the subdivision. We therefore conclude that there is no basis for
a finding that plaintiff did not come to this equitable action with
clean hands (see Sparkling Waters Lakefront Assn., Inc. v Shaw, 42
AD3d 801, 804).

     We have considered defendant’s remaining contentions and conclude
that they are without merit.




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
