Decker v. Casey

— Order unanimously modified on the law and as modified affirmed without costs and judgment granted, in accordance with the following 922 Memorandum: Plaintiffs appeal and defendant Cynthia Casey cross-appeals from an order of Supreme Court which granted defendant’s motion for partial summary judgment dismissing plaintiffs’ first and second causes of action, and granted plaintiffs’ cross motion for partial summary judgment dismissing defendant’s second counterclaim. We now modify, deny defendant’s motion, and grant summary judgment to plaintiffs on the first and second causes of action. This is an action by which plaintiffs seek a declaration that they have a right-of-way over defendant’s property, and reformation of the deed so as to describe correctly the right-of-way as benefitting plaintiffs. The deed, conveying two lots from plaintiffs to defendant, expressly reserves a right-of-way across defendant’s property to the shore of Sodus Bay. Defendant contends, however, that the deed and other documents establish the intent of the parties to limit the use of the right-of-way to a third party, the Azmuths, with no reservation of a right-of-way for the benefit of plaintiffs. We cannot agree. We do not read the deed language as conveying a personal and exclusive right-of-way to the Azmuths. Rather, the language of the instrument is susceptible of varying interpretations. Under these circumstances, the court may look to parol evidence to ascertain the intent of the parties (see, Cordua v Guggenheim, 274 NY 51, 57). Considering the submissions in support of and in opposition to the motion, we believe that it is apparent that the parties intended to reserve an easement for the benefit of plaintiffs’ property. Accordingly, we grant judgment to plaintiffs declaring that they have an easement across defendant’s property, as described in the deed to defendant’s property. We affirm that portion of the order which granted plaintiffs’ motion for partial summary judgment dismissing defendant’s counterclaim for trespass. (Appeals from Order of Supreme Court, Wayne County, Strobridge, J. — Summary Judgment.) Present — Callahan, J. P., Green, Pine, Lawton and Davis, JJ.