Implicit Severance Bars CPLR 5501(a)(1) Review of a Prior Final Judgment; Easement Holders Cannot Obstruct Rights-of-Way by Parking

Introduction

This commentary examines the Appellate Division, Third Department’s decision in Matter of Paul Calcagno, Jr. Development LLC v. Village of Kinderhook, New York, 2025 NY Slip Op 05999 (Oct. 30, 2025). The dispute arises from a long-used right-of-way located on a wedge-shaped “corner parcel” owned by the Village of Kinderhook, situated between properties owned by the petitioner, Paul Calcagno, Jr. Development LLC (the developer), and respondent The Hat Factory LLC (the Hat Factory). The case has two core dimensions:

Procedural/Appellate Practice: Whether, under CPLR 5501(a)(1), an appeal from a later judgment resolving a counterclaim permits review of an earlier, final judgment where the earlier appeal was dismissed for failure to perfect. The Third Department holds that it does not, clarifying that a prior final judgment that disposed of all of a party’s claims is not brought up for review on appeal from a subsequent judgment resolving a severed counterclaim—especially where the earlier appeal was dismissed for failure to perfect.
Property/Easement Law: The scope and reasonable use of a deeded right-of-way dating back to 1839. The court reiterates that a right-of-way is a right of passage, not a property interest in the physical corridor itself, and that parking in the right-of-way to block another’s use is an unreasonable interference. The court upholds a declaration limiting use to loading/unloading and functions reasonably necessary to access, and barring parking that impedes or obstructs, including overnight parking.

The decision affirms a March 2024 Supreme Court judgment that declared the existence and scope of the Hat Factory’s easement rights, while holding that challenges to the earlier December 2022 judgment (which dismissed the developer’s Article 78 and declaratory claims) were foreclosed on this appeal.

Background and Parties

The properties at issue abut at their rear corners near Broad Street and Hudson Avenue in the Village of Kinderhook, Columbia County. Between the parcels lies a Village-owned “corner parcel” acquired through two mid-20th century conveyances:

1944: The Hat Factory’s predecessor, Augustus Torres, conveyed land to the Village Trustees.
1945: The developer’s predecessors, George and Jean Dunham, conveyed land to the Village Trustees but expressly retained a right-of-way for ingress and egress (and related customary uses) to serve as a loading road. The Dunham deed also contained restrictions that the Village would not obstruct the right-of-way and would not use it for parking.

Crucially, the Hat Factory’s chain of title includes 1839 deeds granting “free [and] unobstructed” use of the right-of-way for “vehicles and loads,” predating the Village’s mid-century acquisitions. In 2021, seeking to formalize access to improvements near the end of the right-of-way, the Hat Factory applied to the Village Board of Trustees for an easement. A title search confirmed the historic right-of-way in the Hat Factory’s chain. The Board then granted a permanent easement over the right-of-way and an adjacent portion of the corner parcel to reach the Hat Factory’s improvements.

Procedural History and Posture

Combined proceeding/action (CPLR article 78 + declaratory judgment): The developer sued to annul the Board’s determination and to declare the Hat Factory’s use illegal. The Hat Factory counterclaimed for a declaration clarifying the rights and limitations governing the right-of-way (it later withdrew a second counterclaim).
December 2022 (Supreme Court, Jordan, J.): Dismissed the developer’s petition/complaint in full. The court held the Hat Factory possessed a deeded right to use the right-of-way dating to 1839 and found nothing improper about the Board’s 2021 easement. It noted the Hat Factory’s counterclaim remained pending (not the subject of motion practice).
Appeal attempt and dismissal: The developer noticed an appeal from the December 2022 judgment but failed to perfect; that appeal was dismissed for failure to perfect in a timely fashion.
March 2024 (Supreme Court, Sara McGinty, J.): Granted the Hat Factory’s motion on the counterclaim, declaring (i) the Hat Factory’s right to use the right-of-way and (ii) reasonable limits on use by both parties (no overnight parking; no parking that impedes/obstructs; use permitted for loading, unloading, and reasonably necessary access).
Current appeal: The developer appealed from the March 2024 judgment. The Third Department affirms.

Summary of the Opinion

The Third Department holds:

No back-door review under CPLR 5501(a)(1): The developer cannot use its appeal from the March 2024 judgment (on the Hat Factory’s counterclaim) to revisit issues previously decided against it in the December 2022 judgment dismissing its claims. The 2022 judgment was final as to the developer’s claims and implicitly severed the Hat Factory’s counterclaim. The developer’s earlier appeal was dismissed for failure to perfect. Therefore, CPLR 5501(a)(1) does not bring up the 2022 judgment for review on this later appeal.
Easement confirmed; scope clarified: The court affirms the declaration that the Hat Factory has a deeded right-of-way, grounded in 1839 deeds that provide “free [and] unobstructed” passage for “vehicles and loads,” and that both parties’ use is limited to loading/unloading and reasonably necessary access. Parking in a manner that impedes or obstructs—especially to block the other’s use—is unreasonable and prohibited; no overnight parking is permitted in the right-of-way.
Evidence of historic rights is sufficient: The court rejects attacks on the legibility/validity of the historic handwritten deeds and recognizes the corroborative value of the title search report, citing CPLR 4522 and 4523.

Analysis

Precedents and Authorities Cited

CPLR 5501(a)(1) and Burke v Crosson, 85 NY2d 10 (1995): Burke articulates the rule that an appeal from a final judgment brings up for review prior non-final orders that necessarily affect the final judgment, provided they have not been previously reviewed. Here, the Third Department reiterates that principle but holds it inapplicable: the December 2022 judgment was itself a final disposition of the developer’s claims and was implicitly severed from the Hat Factory’s counterclaim. Thus, it was not a “non-final” order that could be swept up into the later appeal.
Heller v State of New York, 81 NY2d 60 (1993): The Court of Appeals’ reasoning supports the Third Department’s approach to finality and severance. Where a judgment fully disposes of one set of claims, leaving others to be resolved later, that judgment can be final and separately appealable; it is not automatically reviewable in a subsequent appeal from the later judgment resolving remaining claims. The present opinion leans on Heller to confirm that the December 2022 judgment was final as to the developer’s claims and thus not reviewable via the March 2024 appeal.
Matter of 1801 Sixth Ave., LLC v Empire Zone Designation Bd., 95 AD3d 1493 (3d Dept 2012), lv dismissed 20 NY3d 996 (2012): Cited to illustrate how the Third Department handles finality and the scope of review when parts of a matter are resolved at different times.
Matter of Knieriemen Oil Co. v Lane, 21 AD2d 797 (2d Dept 1964): Cited for the procedural effect of a failure to perfect an appeal—once dismissed, a party cannot revive review of that judgment through a later appeal from a different judgment.
CPLR 5701(a)(1) and CPLR 7806: Address appealability and the nature of relief in Article 78 proceedings, reinforcing the point that the December 2022 judgment was appealable and that the developer’s failure to perfect has consequences for appellate review.
Dukett v Wilson, 31 AD3d 865 (3d Dept 2006), and Lumnah v Rogers, 33 AD2d 596 (3d Dept 1969): Support the propriety of declaratory relief that recognizes and delineates established easement rights and usage parameters once entitlement has been determined.
Marek v Woodcock, 277 AD2d 864 (3d Dept 2000), lv dismissed 96 NY2d 792 (2001): Quoted for the core principle that a right-of-way is a right of passage rather than an ownership interest, and that easement holders are entitled to reasonable use and enjoyment of the way—an anchor for prohibiting obstructive parking.
Green Hills [USA], LLC v Marjam of Rewe St., Inc., 208 AD3d 1158 (2d Dept 2022), and Ledley v D.J. & N.A. Mgt., Ltd., 71 AD3d 1096 (2d Dept 2010): Second Department decisions reinforcing that parking or similar conduct that blocks an easement holder’s passage is an unreasonable interference.
CPLR 4522 and 4523: The opinion cites these evidentiary provisions to support reliance on historic handwritten deeds and a title search report establishing the Hat Factory’s easement rights. In broad terms, they recognize the admissibility and probative force of longstanding instruments of title and related documentation when properly shown.

Legal Reasoning

Finality and “implicit severance” foreclose CPLR 5501(a)(1) review.
The December 2022 judgment dismissed the developer’s Article 78 and declaratory claims in their entirety, leaving only the Hat Factory’s counterclaim unresolved. As the Third Department explains, that judgment was final as to the developer’s claims and implicitly severed the counterclaim. The developer even filed an appeal, confirming that the judgment was appealable, but the appeal was dismissed for failure to perfect. That posture is dispositive: on the later appeal from the March 2024 judgment (resolving the counterclaim), the developer cannot use CPLR 5501(a)(1) to “bring up” the prior, final judgment for review. The court’s reasoning harmonizes Burke v Crosson (scope of CPLR 5501(a)(1)) with Heller (finality and severance) and underscores that non-perfected appeals do not preserve issues for a subsequent appeal from a distinct judgment.
Easement entitlement already determined; only scope and use remained.
With entitlement settled by the December 2022 judgment, the Supreme Court in March 2024 properly entered a declaration that the Hat Factory holds a deeded right-of-way. The record contained 1839 deeds granting “free [and] unobstructed” use for “vehicles and loads,” and a title search report corroborating this chain—both appropriately credited under CPLR 4522 and 4523.
Reasonable use standard prohibits obstructive parking.
The court reiterates the established principle: a right-of-way is a right to pass and repass; it does not convey ownership of the land itself. Use of the way must be “reasonable,” meaning consistent with the easement’s purpose and not unduly burdensome to co-users. On an undisputed record, the developer parked vehicles in the right-of-way to prevent the Hat Factory from using it. That is an unreasonable interference. Consistent with Marek, Green Hills, and Ledley, the court affirms the declaration that the right-of-way may be used for loading/unloading and reasonably necessary access, but not for overnight parking or any parking that impedes or obstructs passage.
Municipal easement grant was not improper.
Although the propriety of the Village Board’s 2021 easement grant cannot be re-litigated in this appeal, the court endorses the December 2022 conclusion that nothing was improper about the Board’s action. Practically, the Board’s grant functioned to formalize existing access over municipal land consistent with preexisting, deeded rights.

Impact and Practical Implications

Appellate practice—do not rely on CPLR 5501(a)(1) to revive a lapsed appeal:
- When a judgment disposes of all your claims—even if a counterclaim by the opposing party remains—treat it as a final judgment. If you intend to appeal, perfect the appeal timely. A failure to perfect can be fatal to later attempts at review.
- An appeal from a later judgment resolving a counterclaim will not bring up the earlier final judgment for review under CPLR 5501(a)(1), particularly where, as here, the court treats the earlier judgment as implicitly severed and the earlier appeal was dismissed for failure to perfect.
Easement law—clear limits on “parking as obstruction”:
- The decision reinforces that “free and unobstructed” rights-of-way for vehicles and loads are for passage and reasonable access-related activities like loading/unloading.
- Using the right-of-way to park vehicles in a way that impedes or blocks another holder’s use is an unreasonable interference and may be enjoined or declared unlawful. Overnight parking is particularly suspect and here is expressly barred.
- Historic restrictions in later deeds (e.g., a municipality’s own “no obstruction/no parking” promise in a 1945 conveyance) bolster, but are not necessary to, the general rule prohibiting obstruction of passage.
Title and evidence—ancient deeds and corroboration:
- Courts will credit old, legible handwritten deeds that are properly authenticated and within the chain of title, especially when supported by a professional title search report, under CPLR 4522 and 4523.
- For property owners and municipalities, thorough title work remains crucial; long-embedded easements often predate modern subdivisions and municipal acquisitions.
Municipal practice—formalizing access over municipal land:
- Village boards can recognize and memorialize access rights consistent with the public interest and with historic property burdens through easement instruments. Proper findings and documentation help withstand judicial scrutiny.
- Where adjacent private parcels share a historic right-of-way across municipal land, municipalities should design signage, bollards, or striping (if needed) to maintain “free and unobstructed” passage consistent with judicially declared rights.

Complex Concepts Simplified

Right-of-way vs. easement: A right-of-way is a type of easement—an intangible right to pass over someone else’s land. It does not give ownership of the land itself. The holder may make reasonable use necessary to enjoy the right (e.g., driving in and out, loading/unloading), but may not unreasonably burden the servient land or block co-holders.
“Free and unobstructed” passage: Language often found in historic deeds. It accentuates that the easement must remain open for passage; parking or placing objects that impede travel is typically inconsistent with this obligation.
Reasonable use standard: Courts judge easement use by reasonableness. Temporary, incidental stopping to load may be reasonable; using the way as a parking lot is not.
Article 78 proceeding: A special proceeding to challenge actions of state or local agencies (e.g., a village board), typically on grounds like arbitrariness, illegality, or procedural error. Relief is limited by CPLR 7806.
Declaratory judgment: A court order that clarifies the rights and obligations of parties without necessarily awarding damages or injunctions. Here, it defined who can use the right-of-way and how.
Final judgment and “implicit severance”: A judgment that ends all claims of a party is final and immediately appealable, even if a counterclaim remains. When the remaining claim proceeds, the earlier final judgment is treated as severed—meaning it is not rolled forward for review with the later judgment.
CPLR 5501(a)(1): Allows an appeal from a final judgment to bring up prior non-final orders that necessarily affect the final judgment, if not previously reviewed. It does not revive a separate, earlier final judgment that was appealable—and certainly not one where the appeal was dismissed for failure to perfect.
Perfecting an appeal: After filing a notice of appeal, the appellant must take additional steps (assemble the record, serve and file briefs, etc.) by deadlines set by the court’s rules. Failure to do so can result in dismissal.
Ancient document rule and title proof (CPLR 4522, 4523): New York evidentiary rules recognize the admissibility and evidentiary value of longstanding instruments of title and related documentation when properly authenticated and relevant. This helps courts rely on historic deeds and title reports to ascertain easement rights.

Conclusion

The Third Department’s decision carries two notable messages. First, on appellate practice, it underscores that a prior judgment that finally disposes of a party’s claims cannot be smuggled into a later appeal from a judgment on a counterclaim under CPLR 5501(a)(1)—especially where the earlier appeal was dismissed for failure to perfect. The court’s invocation of “implicit severance,” anchored in Heller and consistent with Burke, should sharpen litigants’ attention to finality and perfection deadlines in multi-claim and mixed proceeding/action contexts.

Second, on easements, the opinion reaffirms a familiar but critical principle: a right-of-way is a right of passage, and the touchstone is reasonable use. Using a right-of-way to park cars to block a neighbor’s use flouts both deeded language promising “free and unobstructed” passage and long-settled doctrine. The court’s declarations—permitting loading/unloading and necessary access, and forbidding obstructive or overnight parking—provide a pragmatic template for resolving similar access disputes rooted in historic rights.

In sum, Matter of Paul Calcagno, Jr. Dev. LLC v. Village of Kinderhook clarifies the limits of CPLR 5501(a)(1) in the wake of a dismissed appeal from a final judgment and fortifies the law governing reasonable use of rights-of-way. The case will guide appellate strategy in multi-claim litigation and inform property owners, municipalities, and courts on calibrating the use and management of historic easements across shared or public lands.