Parties cannot stipulate to force the courts to resolve factual issues on cross motions for summary judgment in order to avoid a trial.

In Friends of Thayer Lake LLC v. Brown (May 10, 2016), plaintiffs own land abutting the state-owned William C. Whitney Wilderness Area in the Adirondacks.  The Wilderness Area encompasses in pertinent part a network of lakes, ponds, streams and canoe carries known as the Lila Traverse which permits canoe travel between Little Tupper Lake and Lake Lila.  More specifically, the Lila Traverse includes the Mud Pond Waterway, which is a two-mile-long system of ponds and streams that crosses plaintiffs’ property.  The State Department of Environmental Conservation created an eight-tenth-of-a-mile canoe carry to avoid the Mud Pond Waterway, but defendants maintain that the Mud Pond Waterway is “navigable in fact” and therefore a public highway freely accessible by the boating public.

[Per a N.Y. Attorney General press release dated February 24, 2011 (, plaintiffs initially sued defendant Phil Brown for trespass for paddling the waterway in 2009.  The State of New York moved to intervene and counterclaimed against plaintiffs to require plaintiffs to remove intimidating signs, cameras, and steel cables that plaintiffs had placed across the waterway to prevent kayakers, canoeists, and other boaters from traveling across their property.]

The parties cross-moved for summary judgment seeking a ruling as a matter of law on whether the Mud Pond Waterway is navigable in fact and therefore open to public use.  The parties did not want a trial and jointly requested that Supreme Court rule as a matter of law on their respective motions, contending that the material facts were fully and accurately presented in the record and not significantly in dispute.   Both Supreme Court and the Third Department granted the parties’ request to resolve the dispute as a matter of law, stating that the parties in a civil dispute may chart their own course in litigation and may agree on the factual basis for the resolution of their controversy.

But the Court of Appeals ruled otherwise stating that the parties’ freedom to chart their own course in litigation must yield to certain practicalities, to wit, unresolved questions of fact: a motion for summary judgment requires the movant to demonstrate the absence of any material issues of facts.  Noting the absence of a stipulated statement of facts and an voluminous, detailed and expansive record (which included documents, maps, photographs, letters, articles, guidebooks, video footage, diaries, testimony, and affidavits), the Court of Appeals found conflicting or inconclusive evidence regarding many material facts including the waterway’s historical and prospective commercial utility, its historical accessibility to the public, the relative ease of passage by canoe, and the volume of historical and prospective travel on it.  Because of these questions of fact, the Court of Appeals denied summary judgment to all parties, expressly requiring a trier of fact to weigh the competing evidence, assess the credibility of witnesses, and reach the ultimate conclusion of navigability in fact.

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