                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     519812
________________________________

STANLEY E. DAVIS et al.,
                    Respondents-
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
BEL DONO, LLC, et al.,
                    Appellants-
                    Respondents.
________________________________


Calendar Date:   April 30, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

                             __________


      D'Arrigo & Cote, Liverpool (Mario D'Arrigo of counsel), for
appellants-respondents.

      Wladis Law Firm, East Syracuse (Timothy J. Lambrecht of
counsel), for respondents-appellants.

                             __________


Lahtinen, J.P.

      Cross appeals (1) from an order of the Supreme Court
(Demarest, J.), entered February 21, 2014 in St. Lawrence County,
which, among other things, denied defendants' motion for summary
judgment dismissing the complaint, and (2) from an order of said
court, entered July 8, 2014 in St. Lawrence County, which, among
other things, upon renewal, adhered to its prior decision.

      In 1974, Supreme Court (Shea, J.), determined that
plaintiffs (and certain other individuals) had established their
right to a prescriptive easement over property of defendants'
predecessors. After defendants purchased the property in 2011, a
dispute arose as to whether the 1974 order included a right to
                              -2-                519812

cross a short section referred to by the parties as, among other
things, a "roadway" or "driveway," and aptly labeled by Supreme
Court (Demarest, J.) as a "spur." The spur provided access to a
lake and, when defendants blocked the spur, plaintiffs commenced
this action. Motions ensued, which Supreme Court treated as
competing motions for summary judgment. Supreme Court denied the
summary judgment motions in February 2014, without prejudice to
renewal after discovery. Defendants moved to renew in March
2014, and plaintiffs moved to amend their complaint. In a July
2014 order, Supreme Court granted defendants' request for
renewal, but adhered to its determination that summary judgment
was not appropriate. As for plaintiffs' motion, the court
permitted plaintiffs to add a cause of action alleging a
prescriptive easement as to the spur, but denied their request to
include a cause of action for an easement by necessity. Both
parties appeal.

      We agree with Supreme Court that review of the 1974
decision and order reveals a significant ambiguity as to whether
the spur was intended to be included in the easement (see W.W.W.
Assoc. v Giancontieri, 77 NY2d 157, 162 [1990] ["(w)hether or not
a writing is ambiguous is a question of law to be resolved by the
courts"]). For example, it is not clear whether the spur existed
in 1974 and was considered one of the roadway "branches"
referenced by the 1974 order as being included in the easement,
or whether the spur was merely a driveway and the "branches"
referred to separate northerly and southerly roads included in
the easement. Consideration of extrinsic evidence is thus
appropriate (see e.g. Roemer & Featherstonhaugh v
Featherstonhaugh, 274 AD2d 630, 631 [2000]; Broadcast Music, Inc.
v DMX, Inc., 683 F3d 32, 43 [2d Cir 2012]). The parties
produced, among other evidence, affidavits from individuals who
are personally familiar with the relevant area – some for decades
– and those affidavits reveal significant conflicts on several
key factual issues that must be subjected to the crucible of
cross-examination so that proper credibility determinations can
be made. Accordingly, summary judgment was appropriately denied
to both parties.

      Inasmuch as the amendment allowed to plaintiffs' complaint
was not wholly devoid of merit and defendants did not show
                              -3-                  519812

prejudice, we are unpersuaded that Supreme Court abused its
discretion in partially granting plaintiffs' motion to amend
their complaint (see Leclaire v Fort Hudson Nursing Home, Inc.,
52 AD3d 1101, 1102 [2008]; Bast Hatfield, Inc. v Schalmont Cent.
School Dist., 37 AD3d 987, 988 [2007]).

     Garry, Egan Jr. and Rose, JJ., concur.



     ORDERED that the orders are affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
