Tagle v. Jakob

—Cardona, P. J. Appeal from that part of an order of the Supreme Court (Castellino, J.), entered September 16, 1999 in Schuyler County, which denied defendant Donna Jakob’s motion for summary judgment dismissing the complaint against her. Defendant Donna Jakob (hereinafter defendant) is the owner of a one-family residence located in the Town of Reading, Schuyler County, which she leased to Betty Roy on or about May 31, 1996. In 1945, defendant New York State Electric and Gas Corporation (hereinafter NYSEG) acquired a 10-foot easement in the rear of the premises for maintenance of utility poles and overhead wires. On June 9, 1996, the wires ran through a large pine tree located within the boundaries of that easement. On that day, plaintiff, then 16 years old, was a guest at a barbeque hosted by Roy in the backyard. While climbing the tree, plaintiff came into contact with live wires and fell approximately 25 feet sustaining injuries. He commenced this negligence action against defendant and NYSEG. Following joinder of issue, defendant moved for summary judgment [574] dismissing the complaint against her on the ground, inter alia, that the instrumentality causing plaintiffs injury was wholly within NYSEG’s control as it was located exclusively within the easement granted to NYSEG. Supreme Court denied the motion resulting in this appeal. We note that the owner of a dominant estate in an easement is responsible for maintaining and repairing the easement (see, Raksin v Crown-Kingston Realty Assocs., 254 AD2d 472, 473, lv denied 94 NY2d 751). In contrast, “[a] servient owner is under no obligation to construct means for the enjoyment of the easement, and is not under any duty to make any repairs to the easement, absent an agreement to the contrary” (ibid.; see, Green v Mann, 237 AD2d 566, 568; Cesario v Chiapparine, 21 AD2d 272, 279). “In the absence of any obligation to maintain or repair the easement, the [servient owner’s] only duty is to refrain from unreasonably interfering with the exercise of the right to the use of the easement by the owner of the dominant estate” (Green v Mann, supra, at 568). As previously noted, the utility wires which caused plaintiffs injury passed through the large pine tree located within the confines of NYSEG’s easement. The instrument conveying the easement did not contain any covenants obligating the grantor to maintain or repair it. The proof indicated that NYSEG exclusively, maintained the easement. In June 1990, NYSEG contracted and bore the expense of having the pine tree trimmed. Before trimming the tree, NYSEG did not notify defendant or obtain her permission to enter upon the property. Following plaintiffs accident, Roy inquired of defendant whether she could have her boyfriend cut down the tree. Defendant responded that she would need NYSEG’s permission. NYSEG ultimately arranged to have the pine tree topped to expose the utility wires. In view of NYSEG’s exclusive control of the easement and maintenance of the pine tree located therein, together with defendant’s status as owner of the servient estate and her responsibilities in connection with that ownership, we find that defendant was entitled to summary judgment dismissing the complaint against her. In light of our disposition, we need not address defendant’s remaining claims. Mercure and Rose, JJ., concur.