___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00420
The issue was whether a certain waterway in Hamilton County is navigable-in-fact, a determination which bears significantly on the property rights of the adjacent landowners. The parties moved and cross-moved for summary judgment, and the proof was such that the trial court stated its inclination to view the ultimate determination as one of fact, to deny the motions and leave the matter for trial. The parties, both before the trial court and in the Appellate Division, noted that despite an extensive record the essential facts were not in dispute and asked the court to issue a determination as a matter of law.
Noting the general principle that the parties may chart their own procedural course, the Appellate Division held that under the circumstances it was appropriate to accede to the parties’ request and determine the dispute as a matter of law.