Justice Robert J. Muller
Plaintiffs formerly owned property adjacent to defendants, which were both purchased from a common grantor who conveyed to plaintiffs a parcel with a non-exclusive easement and right-of-way. A court directed defendants to remove certain improvements within the boundary and permanently enjoined them from future interference with the easement. Plaintiffs argued defendants refused to comply with the prior order despite its affirmance on appeal, seeking sanctions and to hold defendants in contempt. Defendants cross-moved for dismissal. The court noted plaintiffs’ submissions indicated they continued settlement negotiations with defendants after the appeal was decided, and their last offer remained open until less than one month before this motion was filed. Hence, given the on-going negotiations, sanctions were found unwarranted by virtue of defendants’ failure to comply with the court’s prior offer. Yet, it noted conduct could become frivolous if it was continued when its lack of legal or factual basis was apparent. Thus, the court noted defendants’ conduct could not currently be deemed frivolous, denying both motion and cross-motion, but ordering defendants to remove all encroachments they erected on the easement.
