                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 5, 2015                     517877
________________________________

DOUGLAS E. KAMPFER,
                      Appellant,
     v                                      MEMORANDUM AND ORDER

JACOB DaCORSI et al.,
                    Respondents.
________________________________


Calendar Date:   January 16, 2015

Before:   Lahtinen, J.P., Egan Jr., Lynch and Devine, JJ.

                             __________


     Douglas E. Kampfer, Mayfield, appellant pro se.

      Hodgson Russ LLP, Albany (Christian J. Soller of counsel),
for Jacob DaCorsi and another, respondents.

      Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady
(Peter J. Coffey of counsel), for John Buchanan, respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Hoye J.),
entered October 25 2013 in Fulton County, which, among other
things, granted defendants' motions for summary judgment
dismissing the complaint.

      In November 2007, plaintiff and defendant John Buchanan
entered into a written agreement by which plaintiff agreed to
loan Buchanan $10,000, which Buchanan agreed to repay, interest
free, by December 31, 2008. The agreement also provided that
Buchanan "grants to [plaintiff] the right to use the land listed
above for the purpose of agriculture," and lists seven separate
parcels. There is no dispute that Buchanan repaid the loan in
                              -2-                517877

full on April 27, 2008, well in advance of the due date. An
ongoing dispute continued as to whether plaintiff retained an
easement to use the land after the loan had been repaid (see
Kampfer v Buchanan, 2011 WL 691647, 2011 US Dist LEXIS 16586 [ND
NY, Feb. 18, 2011, No. 1:10-CV-1234]). In 2013, Buchanan
conveyed the property to defendants Jacob DaCorsi and Brittany
DaCorsi. After the DaCorsis commenced a proceeding to remove
plaintiff from the property, plaintiff commenced this action for
breach of contract against Buchanan and for defamation against
the DaCorsis. Defendants answered and interposed counterclaims
against plaintiff for damages. Plaintiff, in turn, moved for an
order requiring defendants to post a surety bond in the amount of
$20,000. Defendants then moved for, among other things, summary
judgment dismissing the complaint, and plaintiff cross-moved for
summary judgment. Supreme Court, among other things, denied
plaintiff's motion for a bond and granted defendants' motions and
dismissed the complaint and all counterclaims and cross claims.
The court imposed sanctions against plaintiff in the amount of
$5,000 payable to Buchanan and $5,000 payable to the DaCorsis.
Plaintiff now appeals.

      Acknowledging that the loan was repaid, plaintiff maintains
that the agreement conveyed to him a continuing easement to
utilize the property for agricultural purposes. We disagree. We
recognize that "'it is often difficult to distinguish between an
easement, which is an interest in real property, and a mere
license, which implies no such interest, . . . is personal to the
holder, is not assignable and is of limited duration'" (Henry v
Malen, 263 AD2d 698, 702 [1999], quoting Simmons v Abbondandolo,
184 AD2d 878, 879 [1992]; see Loch Sheldrake Assoc. v Evans, 306
NY 297, 304 [1954]; State of New York v Johnson, 45 AD3d 1016,
1018 [2007]; Webster v Ragona, 7 AD3d 850, 852, 853 n 1 [2004]).1
"'To create an easement by express grant there must be a writing
containing plain and direct language evincing the grantor's
intent to create a right in the nature of an easement rather than


    1
        The two broad easement categories are (1) easements
appurtenant, which provide an interest in the land, and (2) a
license or easement in gross, which provides a personal right of
use only (see Henry v Malen, 263 AD2d at 703 n 3).
                              -3-                517877

a revocable license'" (State of New York v Johnson, 45 AD3d at
1018, quoting Willow Tex v Dimacopoulos, 68 NY2d 963, 965
[1986]). Aside from the word "grant," the agreement does not use
language typically utilized to convey an interest in land, such
as "convey" and "forever" (compare Henry v Malen, 263 AD2d at
703; Clements v Schultz, 200 AD2d 11, 13 [1994]). Moreover, the
agreement expressly speaks to a loan and includes a clause
purporting to authorize plaintiff to foreclose upon the property
for nonpayment. Where, as here, there is no express time
limitation for the right to use the property, that right should
be deemed a license, and not an easement (see Willow Tex v
Dimacopoulos, 68 NY2d at 965), particularly given that plaintiff
drafted the agreement (see 22 NY Jur 2d, Contracts § 257). Both
the language of the agreement and the loan context lead us to
conclude, as did Supreme Court, that Buchanan merely conferred a
license upon plaintiff to use the property pending repayment.

      Since the complaint speaks to a breach of contract based
only on Buchanan's asserted failure to cooperate in recording the
agreement in December 2007, for which Buchanan was under no
obligation, we find that Supreme Court properly dismissed this
cause of action against Buchanan. As the license expired in
2008, the DaCorsis were entitled to commence proceedings to
remove plaintiff from the property and, as such, the defamation
claim against them was also properly dismissed. Given the
nuances of the agreement, however, we cannot say that plaintiff
engaged in such frivolous conduct as to warrant financial
sanctions (compare He v Realty USA, 121 AD3d 1336, 1340-1341
[2014]). As such, we find that Supreme Court abused its
discretion in awarding sanctions.

     Lahtinen, J.P., and Egan Jr., J., concur.


Devine, J. (concurring in part and dissenting in part.)

      I differ with the majority's decision only to the extent
that it found that Supreme Court abused its discretion in
imposing sanctions upon plaintiff. "The authority to impose
sanctions or costs is committed to the court's sound discretion
and, absent an abuse thereof, we will not disturb such an award"
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(De Ruzzio v De Ruzzio, 287 AD2d 896, 896 [2001] [internal
quotation marks and citation omitted]; see Ireland v GEICO Corp.,
2 AD3d 917, 919 [2003]; First Deposit Natl. Bank v Van Allen, 277
AD2d 858, 859 [2000]). Sanctions may be imposed upon a party if
his or her conduct "is completely without merit in law and cannot
be supported by a reasonable argument for an extension,
modification or reversal of existing law[,] is undertaken
primarily to delay or prolong the resolution of the litigation,
or to harass or maliciously injure another [or] asserts material
factual statements that are false" (22 NYCRR 130-1.1 [c]; see
Mokay v Mokay, 111 AD3d 1175, 1178 [2013]). Importantly, when
determining whether a party has acted frivolously, the court
should consider "'whether or not the conduct was continued when
its lack of legal or factual basis was apparent [or] should have
been apparent'" (Navin v Mosquera, 30 AD3d 883, 883 [2006],
quoting 22 NYCRR 130-1.1 [c]).

      When plaintiff commenced this action, he was well aware
that his assertion that he had easement rights to the property
was tenuous, and there was no cognizable legal basis for his
request that defendants or, alternatively, their attorneys, post
a surety bond. Even after his attempts to secure an injunction
barring his eviction from the land proved futile, plaintiff
pushed ahead with the instant action in such a manner that could
reasonably be viewed as an attempt to harass or maliciously
injure defendants.

      The majority's decision to reverse the award of sanctions
serves to remove one of the few tools that trial courts may
utilize to eliminate baseless actions – and the unrelenting
motions that often accompany such matters – and control parties
who are clearly intent on exploiting our increasingly
overburdened judicial resources. Therefore, I would affirm
Supreme Court's order in its entirety.
                              -5-                  517877

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as awarded sanctions to
defendants, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
