Didonato v. Dyckman
| Decision Date | 28 November 2018 |
| Docket Number | 2015–09664,Index No. 656/07,2016–04720 |
| Parties | Joanne DIDONATO, Appellant, v. Charles DYCKMAN, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
166 A.D.3d 942
88 N.Y.S.3d 488
Joanne DIDONATO, Appellant,
v.
Charles DYCKMAN, et al., Respondents.
2015–09664
2016–04720
Index No. 656/07
Supreme Court, Appellate Division, Second Department, New York.
Argued—June 12, 2018
November 28, 2018
Steven Habiague, Poughquag, NY, for appellant.
Herodes & Mole´, P.C., Mahopac, N.Y. (Anthony R. Mole´ of counsel), for respondents.
MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the plaintiff has a prescriptive easement over certain property owned by the defendants and for injunctive relief, the plaintiff appeals from (1) an order of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated July 30, 2015, and (2) an order of the same court (Paul I. Marx, J.) dated April 7, 2016. The order dated July 30, 2015, insofar as appealed from, granted that branch of the defendants' motion which was pursuant to 22 NYCRR 130–1.1 for an award of costs in the form of an attorney's fee, and denied that branch of the plaintiff's cross motion which was to impose sanctions upon the defendants for spoliation of evidence. The order dated April 7, 2016, denied the plaintiff's motion for summary judgment on the amended complaint, and granted the defendants' cross motion for summary judgment declaring that the plaintiff was not entitled to an expansion of the easement.
ORDERED that the order dated July 30, 2015, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the order dated April 7, 2016, is modified, on the law, by deleting the provision thereof granting the defendants' cross motion for summary judgment declaring that the plaintiff was not entitled to an expansion of the easement, and substituting therefor a provision denying the defendants' cross motion; as so modified, the order dated April 7, 2016, is affirmed, without costs or disbursements.
The plaintiff and the defendants own abutting lots located in Mahopac. The plaintiff's property benefits from an easement by grant dated April 1, 1964, which is
a right-of-way along a private, 12–foot–wide surfaced road located on the defendants' property, for ingress and egress between the plaintiff's property and Highland Road. The plaintiff commenced this action seeking, inter alia, a judgment declaring that she had the exclusive right of ingress and egress over the easement. After the action was commenced, the Supreme Court granted the plaintiff's motion for leave to amend the complaint. However, the plaintiff served an amended complaint that differed in certain respects...
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