SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1128
CA 13-00511
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
ANDREW PRESTIGIACOMO, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
JUNE N. AMES, ET AL., DEFENDANTS,
BARBARA SPRINGER, ET AL., DEFENDANTS-RESPONDENTS.
MOYER AND RUSSI, P.C., WEBSTER (MICHAEL STEINBERG OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
DAVIDSON FINK LLP, ROCHESTER (CURTIS A. JOHNSON OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Ontario County (Craig
J. Doran, A.J.), entered August 3, 2012. The order granted the motion
of a group of defendants, who are identified as the “Canandaigua Lake
Rights Defendants,” to dismiss the complaint against them and denied
the cross motion of plaintiff for summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: In this action to quiet title in connection with an
easement, plaintiff appeals from an order that granted the motion of a
group of defendants, who are identified as the “Canandaigua Lake
Rights Defendants” (defendants), to dismiss the complaint against them
and denied plaintiff’s cross motion for summary judgment. Contrary to
plaintiff’s contention, we conclude that Supreme Court properly
granted defendants’ motion inasmuch as it was based on documentary
evidence, i.e., a deed, conclusively establishing a defense to
plaintiff’s complaint as a matter of law (see CPLR 3211 [a] [1];
Thirty One Dev., LLC v Cohen, 104 AD3d 1195, 1196; see generally
Camperlino v Town of Manlius Mun. Corp., 78 AD3d 1674, 1676, lv
dismissed 17 NY3d 734; Blangiardo v Horstmann, 32 AD3d 876, 879, lv
dismissed 8 NY3d 939). In opposition, plaintiff failed to assert any
ground to defeat defendants’ motion. In particular, plaintiff failed
to raise a question of fact that the language of the deed with respect
to the easement contains conditions subsequent that resulted in
reversion or forfeiture of the grant of the easement (see Stratis v
Doyle, 176 AD2d 1096, 1098; Koshian v Kirchner, 139 AD2d 942, 943;
Fausett v Guisewhite, 16 AD2d 82, 86-87). Plaintiff’s cross motion
for summary judgment seeking a ruling that the easement is, inter
alia, “no longer legally valid” was premature (see CPLR 3212 [a]) and,
-2- 1128
CA 13-00511
in any event, lacked merit.
Entered: November 15, 2013 Frances E. Cafarell
Clerk of the Court