Venezia v. Luma

Venezia v Luma

2026 NY Slip Op 04897 August 6, 2026

Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Justin Venezia et al., Appellants,

v

Tracy A. Luma et al., Respondents, et al., Defendant.

Decided and Entered:August 6, 2026

CV-25-0187

Calendar Date: May 29, 2026

Before: Clark, J.P., Aarons, Ceresia, Mcshan And Powers, JJ.

Marc W. Miller & Associates, PC, Kingston (Raymond Ragues of counsel), for appellants. John J. Greco, Kingston, for respondents.

[*1]

McShan, J.

Appeal from an order of the Supreme Court (Sharon Graff, J.), entered October 30, 2024 in Ulster County, upon a decision of the court partially in favor of defendants.

Plaintiff Justin Venezia purchased a parcel of land in November 2019 located in the Town of Rosendale, Ulster County; in 2021, he conveyed the parcel to himself and his spouse â​​ plaintiff Tedhar Setton. Plaintiffs' parcel (hereinafter the Venezia parcel) surrounds a two-acre parcel purchased in September 2018 by defendant Tracy A. Luma (hereinafter the Luma parcel), where she and her husband, defendant Joseph Luma (hereinafter collectively referred to as the Lumas), resided. The Luma parcel is land-locked wholly within the Venezia parcel and, as relevant here, the deed for the Luma parcel includes a 20-foot-wide easement for "ingress and egress and utilities" across the Venezia parcel. When the Luma parcel was acquired in 2018, there was a natural swale on the Venezia parcel which served to direct surface water toward the wetlands through an existing culvert that ran under the easement. Despite this infrastructure, the Luma parcel experienced flooding which prompted the parties to deepen the swale to accommodate more water. In March 2022, after the relationship between plaintiffs and the Lumas deteriorated due to disputes over relocating the easement, a subcontractor working for plaintiffs inadvertently traversed onto the Luma parcel and the Lumas responded by contacting law enforcement. The following month, plaintiffs constructed a gate near the boundary between the parcels, and they provided the Lumas with the security code for the gate. In June 2022, the Lumas deposited fill material on the easement to increase its grade, which effectively impaired the functionality of the gate. Plaintiffs thereafter commenced the instant action asserting five causes of action, including, as pertinent here, a trespass cause of action against the Lumas. According to plaintiffs, in response to the construction of the gate, the Lumas and defendant Joseph Luma Contracting LTD (hereinafter collectively referred to as defendants) caused approximately seven truckloads of fill to be deposited on the Venezia parcel to impair the function of the gate. Plaintiffs sought injunctive relief, directing the prohibition of the continuing trespass upon the Venezia parcel, and money damages.^FN1

In their answer, defendants asserted a counterclaim, seeking an injunction directing the removal of the gate interfering with their access easement. After issue was joined, plaintiffs moved for partial summary judgment with respect to their claims regarding the utility connection. Defendants cross-moved for partial summary judgment dismissing the complaint against them and seeking a declaration that they had an easement over and through the Venezia parcel for the use and maintenance of utility poles and utility wires to supply power and other utility service to the Luma parcel. In July 2023, Supreme Court denied the parties' [*2]respective motions for summary judgment.^FN2 Following a bench trial, Supreme Court, among other things, dismissed plaintiffs' trespass cause of action arising out of defendants' placement of fill within the easement and accordingly dismissed plaintiffs' claim for injunctive relief. The court found that, as dominant owners of the easement, defendants had the right to remedy the water damage following a storm and the placement of the fill did not increase the burden on the Venezia parcel. The court also found that the gate significantly and unreasonably interfered with defendants' rights to access the easement and granted defendants' counterclaim for injunctive relief by directing plaintiffs to remove it and permanently enjoining them from erecting or maintaining any gates across the easement. Plaintiffs appeal.^FN3

1

To begin, during the pendency of this appeal, counsel for defendants informed this Court that the Lumas sold all of their interest in the property to a third party.^FN4 Further, defendants note that the new owner of the parcel has since permitted plaintiffs to reinstall a gate across the easement. Defendants therefore assert that the appeal has been rendered moot. We disagree. Supreme Court's order adjudicated an issue with respect to plaintiffs' right to maintain the gate on their property that would bind future owners (see generally Froehlich v Town of Huntington, 159 AD2d 606, 607 [2d Dept 1990], appeal dismissed 76 NY2d 935 [1990], lv denied 77 NY2d 803 [1991]; Bova v Vinciguerra, 139 AD2d 797, 799 [3d Dept 1988]). Further, plaintiffs' claim for trespass sought monetary relief for actions that occurred when the Lumas owned the parcel, and because plaintiffs assert a continuing trespass, their request for injunctive relief is not moot (compare Duffy v Baldwin, 183 AD3d 1053, 1053-1054 [3d Dept 2020]).

On the merits, plaintiffs first challenge Supreme Court's verdict regarding the permissibility of the gate across the access easement. "When reviewing a nonjury verdict, we independently review the probative weight of the evidence, together with the reasonable inferences that may be drawn therefrom, and grant the judgment warranted by the record while according due deference to the trial court's factual findings and credibility determinations" (Turner v Quinones,

244 AD3d 1331, 1333 [3d Dept 2025] [internal quotation marks and citations omitted]; accord Zwack v Hunt, 232 AD3d 1159, 1160 [3d Dept 2024]). As relevant here, "[i]n the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holders' right of passage is not impaired" (Baldo v McDonald, 242 AD3d 1534, 1535 [4th Dept 2025] [internal quotation marks, brackets and citation omitted], lv denied 45 NY3d 903 [2026]; see Abbey Family Trust No. Four v Matthews, 217 AD3d 1158, 1161 [3d Dept 2023]; Panday v Allen, 187 AD3d 775, 778 [2d Dept 2020]). The [*3]credited proof at trial established that plaintiffs installed a 16-foot gate on the side of the easement closest to plaintiffs' property which, as determined by Supreme Court, unreasonably interfered with the Lumas' rights in and to the easement. The court found that when the Lumas entered their property, they were required to park at least 16 feet from the closed gate and exit their vehicle, regardless of any inclement weather or nearby wildlife, in order to reach a keypad located off the traveled surface of the easement. The evidence also showed that deliveries could not be made when the gate was closed unless a code was provided to the driver, and, on at least one occasion, the gate failed to open and left Tracy Luma unable to leave her property until plaintiffs intervened. Further, Joseph Luma testified that he exited and reentered his property anywhere between 15 to 20 times a day and each time he had to exit his vehicle to utilize the keypad.

Plaintiffs' contentions on appeal, in sum, posit that the foregoing factors constitute nothing more than minor inconveniences and do not demonstrate that they substantially impair passage. However, the design of the gate required defendants to perform the foregoing actions each and every time they entered or exited their property, which constituted a significant alteration to their ability to use the easement in the manner in which they had become accustomed (see Lewis v Young, 92 NY2d 443, 449 [1998]; Baldo v McDonald, 242 AD3d at 1536; Abbey Family Tr. No. Four v Matthews, 217 AD3d at 1162; Gisondi v Nyack Mews Condominium, 251 AD2d 371, 372 [2d Dept 1998]). Moreover, plaintiffs acknowledged that the gate had no effect on their own ingress and egress and was installed in response to the isolated trespass incident "exclusively" for the benefit of the Lumas and their guests (see Mester v Roman, 25 AD3d 907, 908 [3d Dept 2006]; compare Hogue v Village of Dering Harbor, 199 AD3d 900, 903 [2d Dept 2021]; Thibodeau v Martin, 119 AD3d 1015, 1016 [3d Dept 2014]). Further, as noted by Supreme Court, the gate was not the only available solution to their complaint that the Lumas traveled too fast over the easement and their driveway. Accordingly, "tak[ing] into account all the surrounding circumstances," we discern no basis to disturb Supreme Court's verdict on defendants' counterclaim (Marek v Woodcock, 277 AD2d 864, 866 [3d Dept 2000] [internal quotation marks and citation omitted], lv dismissed 96 NY2d 792 [2001]; see generally Chekijian v Mans, 34 AD3d 1029, 1032 [3d Dept 2006], lv denied 8 NY3d 806 [2007]).^FN5 To the extent that plaintiffs argue that Supreme Court should have ordered a modification of the gate or corrective measures rather than prohibiting it altogether, they did not make that contention before Supreme Court, rendering it unpreserved (see Pilatich v Town of New Baltimore, 170 AD3d 1463, 1465 [3d Dept 2019]). In any event, based upon the proof adduced at trial, the prohibition from erecting a [*4]gate over the easement was a reasonable remedy (see B.J. 96 Corp. v Mester, 262 AD2d 732, 733 [3d Dept 1999]; see also Wolski v De Luca,

112 AD2d 220, 221 [2d Dept 1985]). Plaintiffs also argue that Supreme Court erred in dismissing their trespass cause of action. We disagree. "The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission, or a refusal to leave after permission has been granted but thereafter withdrawn" (Krakovski v Stavros Assoc., LLC, 245 AD3d 696, 698 [2d Dept 2026] [internal quotation marks and citations omitted]; see Fairchild Corp. v MTA Long Is. R.R., 241 AD3d 787, 789 [2d Dept 2025]). "[T]here is no cause of action alleging trespass over the lands of a property owner where the purported trespasser has acquired an easement over the property in question unless the scope of the easement has been exceeded" (Pawelski v Osczepinski, 192 AD3d 1038, 1039 [2d Dept 2021]; see Cangemi v Yeager, 185 AD3d 1397, 1399 [4th Dept 2020]). On that, "defendants' right to use the road for access include[s] the right to carry out work as necessary to reasonably permit the passage of vehicles and, in so doing, to not only remove impediments but supply deficiencies in order to construct or repair a suitable road" (Lopez v Adams, 69 AD3d 1162, 1163-1164 [3d Dept 2010] [internal quotation marks, brackets and citation omitted]). The Lumas both testified that plaintiffs had raised the elevation of their adjoining parcel causing flooding to parts of the Luma parcel and the easement. Relevant here, Supreme Court credited Joseph Luma's testimony that depositing fill on their property and the easement was necessary to bring the height of the easement to its historical level, as a portion of the easement, in addition to a parking area on the Luma parcel, had "washed out." To the extent that plaintiffs rely on their own testimony regarding the timing and significance of their changes to the nearby swale, the corresponding effect on drainage issues concerning both parcels and the lack of any need to make repairs to the easement, those presented issues of credibility that Supreme Court could fairly resolve against them (see generally Zwack v Hunt, 232 AD3d at 1160; Roque v State of New York, 199 AD3d 1092, 1094 [3d Dept 2021]). In any event, determining who caused any of the damage to the easement is largely immaterial to whether defendants' placement of fill on the easement was permissible, as the dispositive inquiry is whether such changes were "necessary to effectuate the express purpose of its easement" (Albrechta v Broome County Indus. Dev. Agency, 274 AD2d 651, 652 [3d Dept 2000]; accord

2