

Encompass Ins. Co. of Am. v Long Is. Power Auth. (2015 NY Slip Op 03800)





Encompass Ins. Co. of Am. v Long Is. Power Auth.


2015 NY Slip Op 03800


Decided on May 6, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 6, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.


2014-02498
 (Index No. 21937/11)

[*1]Encompass Insurance Company of America, etc., et al., plaintiff-respondent, 
vLong Island Power Authority, defendant-respondent, Long Island Yacht Club, Inc., appellant.


Nicoletti Hornig & Sweeney, New York, N.Y. (William M. Fennell and David R. Hornig of counsel), for appellant.
Feldman & Feldman, LLP, Smithtown, N.Y. (Leonard B. Feldman of counsel), for plaintiff-respondent.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for defendant-respondent.

DECISION & ORDER
In a subrogation action to recover insurance benefits paid to the plaintiff's insured, the defendant Long Island Yacht Club, Inc., appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated January 7, 2014, which denied its converted motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the appellant's converted motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.
Pursuant to a utility easement agreement, the power lines of the defendant Long Island Power Authority (hereinafter LIPA) passed through the property of the defendant Long Island Yacht Club, Inc. (hereinafter LIYC). The easement agreement authorized LIPA to trim any trees along its power lines. There was bamboo vegetation on LIYC's property, which abutted the property of the plaintiff's insureds. The bamboo vegetation allegedly caught on fire due to sparks emanating from LIPA's power lines, which were uninsulated, and the fire allegedly spread to the property of the plaintiff's insureds. The plaintiff subsequently commenced this action against LIPA and LIYC to recover the insurance benefits it paid to its insured. The Supreme Court denied LIYC's converted motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
"Ordinarily, a servient owner has no duty to maintain an easement to which its property is subject. Indeed, a servient owner has a  passive' duty to refrain from interfering with the rights of the dominant owner" (Tagle v Jakob, 97 NY2d 165, 168). LIYC established its prima facie [*2]entitlement to judgment as a matter of law by demonstrating that it was a servient owner which had no duty to trim the bamboo vegetation around LIPA's power lines (see id. at 168-169). In opposition, the plaintiff and LIPA failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320; cf. Whalen v New York City Dept. of Envtl. Protection, 89 AD3d 416).
Accordingly, the Supreme Court should have granted LIYC's converted motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
MASTRO, J.P., LEVENTHAL, COHEN and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


