Pastore v. Zlatniski

• Decision Date: 11 August 1986
• Citation: 122 A.D.2d 840,505 N.Y.S.2d 903
• Parties: Leonard J. PASTORE, et al., Respondents, v. John ZLATNISKI, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 903

505 N.Y.S.2d 903

122 A.D.2d 840

Leonard J. PASTORE, et al., Respondents, v.John ZLATNISKI, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Aug. 11, 1986.

Gatz, Arnoff & Czygier, Riverhead (Harvey A. Arnoff, of counsel), for appellants.

Dollinger, Gonski, Grossman & Permut, Carle Place (Matthew Dollinger, of counsel), for respondents.

Before LAZER, J.P., and BRACKEN, WEINSTEIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to RPAPL article 15 to determine the interests of the respective parties in a certain parcel of real property, the defendants appeal from an order and judgment (one paper) of the Supreme Court, Suffolk County(Sherman, J.), dated November 26, 1984, which, inter alia, granted the plaintiffs' motion for summary judgment and dismissed the defendants' counterclaim.

Order and judgment modified, on the law, by adding thereto a provision declaring that the defendantsJohn Zlatniski, Irene Zlatniski, Howard T. Tuthill and Elizabeth L. Tuthill have no right, title or interest in the real property of the plaintiffs described in the fourth paragraph of the verified complaint.As so modified, order and judgment affirmed, with costs payable by the defendants.

The defendants have failed to raise a triable issue of fact with respect to their alleged entitlement to an implied easement over a portion of the plaintiffs' property.Indeed, the papers submitted by the defendants on the plaintiffs' motion for summary judgment contained no factual support for their claim that during the unitary ownership of the various parcels of real property, a right-of-way was established over the lot presently owned by the plaintiffs and that the right-of-way was physically obvious and apparent upon reasonable inspection prior to the separation of title (see generally, Abbott v. Herring, 97 A.D.2d 870, 469 N.Y.S.2d 268, affd.62 N.Y.2d 1028, 479 N.Y.S.2d 498, 468 N.E.2d 680;Buck v. Allied Chem. Corp., 77 A.D.2d 782, 431 N.Y.S.2d 222;McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541, lv. denied32 N.Y.2d 610, 344 N.Y.S.2d 1025, 297 N.E.2d 524).Moreover, the defendants failed to demonstrate the existence of an issue of fact with regard to their unsubstantiated allegation that the purported right-of-way was necessary to the reasonable use and enjoyment of their respective parcels of real property (see generally, Bigg v. Webb Props., 118 A.D.2d 613, 499 N.Y.S.2d 762).Indeed, they admitted that their respective lots border upon a public thoroughfare.Hence, the defendants' use of the subject property as a means of ingress and egress to their own parcels is a mere convenience, and, as such, is insufficient, as a matter of law, to establish the element of reasonable necessity in order to require an implied easement over the subject property (see, Hedden v. Bohling, 112 A.D.2d 23, 490 N.Y.S.2d 391;Buck v. Allied Chem. Corp., supra).Special Term...