Plaintiffs own property in the Village of Freeport on Randall Bay and granted a drainage easement to the Village in 1961. The easement, dated September 6, 1961, allowed the Village to “construct and maintain one underground storm water drain and one tide gate accessory thereto for drainage purposes.” The Village constructed a drain pipe which was encased in a wooden bulkhead, from the road over the easement premises to Randall Bay. The Village replaced the pipe and bulkhead in 1987 and it had since fallen into disrepair causing numerous sinkholes in the easement area. Plaintiffs requested that the Village repair the drain pipe and bulkhead and the Village refused causing the Plaintiffs to bring this action.

In Anson v. Inc. Village of Freeport, Supreme Court, Nassau County, Index No. 8735-2015, May 1, 2018, the court held for the Village stating, “the Village has shown that the bulkhead is not part of the drainage easement.” The Village of Freeport alleged that it was not required to maintain the bulkhead since it was not included in the obligations outlined in the easement. Reviewing the standards for summary judgment, the court found that the Village “established its prima facie entitlement to judgment as a matter of law” and held that the Village was not responsible for the “repair, maintenance or replacement of the wooden bulkhead.” The court granted the Village’s motion for summary judgment.

By decision dated, April 14, 2021,the Appellate Division, Second Department reversed the Supreme Court holding, in part. After finding that the plaintiff’s claim was not time barred, the Court held that the plaintiffs were entitled to judgment as a matter of law on two causes of action. The Court found that the plaintiffs established that the bulkhead was in fact an integral part of the storm water drainage system currently maintained in the easement area by the Village. The Court stated, “inasmuch as the easement agreement did not place affirmative responsibility for maintenance of those premises upon the owners of the servient estate, it was the Village’s obligation to maintain the bulkhead (see Tagle v. Jakob, 97 NY2d 165, 168; Raskin v. Crown-Kingston Realty Assoc., 254 AD2d 472, 473)…Accordingly, the plaintiffs were entitled to a judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition, and an injunction requiring the Village to do so.”

However, the Court denied the plaintiff’s claim which sought to enjoin the Village from removing the bulkhead or from configuring the storm water pipe and tide gate to allow water to drain on any portion of plaintiff’s property.   The Court found that plaintiffs failed to prove the standards required for the issuance of a preliminary injunction including, “a violation of a right presently occurring or threatened and imminent, that they had no adequate remedy at law, that serious and irreparable harm would result absent the injunction and that the balance of equities are in their favor.” Specifically, the Court held that there was no evidence “showing that the Village had undertaken any action toward, or even contemplated, removing the bulkhead or allowing water to drain on to their property.” Ultimately, the Court remanded the matter to the Supreme Court for further proceedings on the complaint and for the entry of judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition.