Attorney Malpractice, Title Insurance to Prescriptive Easements, No Access in New York.

The plaintiff in McColgan v. Brewer owned a part of what was a larger parcel of property owned by M. Kelley. During construction of the New York State Thruway, the state of New York acquired the middle part of the original Kelley parcel.

As a result, Kelley owned two separate parcels, one west of the Thruway and the other east of the Thruway. The physical layout required Kelley, and now the plaintiff, to use Albert’s Lane to reach Route 32. Kelley’s southern neighbors entered into a series of right-of-way agreements with the owners of the northern parcels to secure access to Route 21 via Alberts Lane in 1953. Kelley was never a party to these right-of-way agreements granting an easement between her property and Route 32.

The plaintiff purchased the Kelley parcels. Prior to purchasing the subject property, the plaintiff (1) hired the defendants Rothe Engineering & Construction and Donald Brewer to conduct a survey of the subject property, (2) hired the Attorney defendant Philip Kirschner to determine if the easterly portion of the property had access to Route 32 via Alberts Lane, and (3) obtained insurance from the defendant Chicago Title Insurance Company through a local agent, Abbacy Abstract, to insure against any losses that he would incur if the landlocked portion of the property did not have access to Route 21.

The plaintiff then amended the zoning of the subject property to develop and use it as a pipe yard. Thereafter, he was informed that the right-of-way agreement over Albert’s Lane did not benefit the landlocked portion of the property. The plaintiff then filed a claim under his insurance policy, which Chicago Title Insurance rejected.

Here, the plaintiff has filed claims (1) against Rothe Engineering & Construction and Donald Brewer for negligence and breach of contract, (2) against Kirschner for legal malpractice, and (3) against Chicago Title for fraud and breach of contract.

At the trial level, (1) Chicago Title moved for summary judgment arguing Kelley’s southern neighbor’s right-of-way agreement benefited the Kelley parcels, (2) the plaintiff moved for partial summary judgment to hold that his landlocked property was not benefited by the right-of-way agreement, and (3) Kirschner moved to preclude certain expert testimony in the plaintiff’s expert disclosure, and the plaintiff cross-moved for costs and sanctions based on filing a frivolous motion.

The trial court denied Chicago Title’s motion for summary judgment, granted the plaintiff’s cross motion for partial summary judgment, and denied the cross motions relating to the expert disclosure. Kirschner appealed on the grounds that the right-of-way agreement established a benefit to the plaintiff’s property.

The court, ruled that Kelley’s neighbors were the only grantees of the agreement stating, “As neither Kelley nor her successors in interest were grantees with respect to the right-of-way agreements with the other landowners, such agreements do not benefit the landlocked portion of plaintiff’s property as a matter of law.”

Regarding the Attorney Kirschner’s motion on precluding expert testimony, the court held that Kirschner failed to demonstrate the plaintiff’s actions were willful or that he was prejudiced as a result.

Bottom Line– the case is going to trial against the attorney and the title company.

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