People v. Byrneses-On-Hudson, Inc.

• Decision Date: 01 April 1996
• Docket Number: INC,BYRNESES-ON-HUDSO
• Citation: People v. Byrneses-On-Hudson, Inc., 640 N.Y.S.2d 259, 226 A.D.2d 353 (N.Y. App. Div. 1996)
• Parties: The PEOPLE of the State of New York, Appellant, v., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 259

640 N.Y.S.2d 259

226 A.D.2d 353

The PEOPLE of the State of New York, Appellant, v.BYRNESES-ON-HUDSON, INC., Respondent.

Supreme Court, Appellate Division Second Department.

April 1, 1996.

Dennis C. Vacco, Attorney General, New York City(Peter G. Crary and Peter D. Hallenbeck, of counsel), for appellant.

Sugarman, Wallace, Manheim & Schoenwald, Syracuse (Andrew J. Leja, of counsel), for respondent.

Before THOMPSON, J.P., and JOY, KRAUSMAN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring, in effect, that the plaintiff was the owner of an easement located on the defendant's property, the plaintiff appeals from an order of the Supreme Court, Putnam County(Hickman, J.), dated February 7, 1995, which denied its motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by remitting the matter to the Supreme Court, Putnam County, for the entry of a judgment declaring that the plaintiff is not the owner of an easement located on the defendant's property; as so modified, the order is affirmed, with costs to the defendant.

Once an appurtenant easement is created, it can only be extinguished by abandonment, conveyance, condemnation, or adverse possession (see, Gerbig v. Zumpano, 7 N.Y.2d 327, 330, 197 N.Y.S.2d 161, 165 N.E.2d 178;see also, Strnad v. Brudnicki, 200 A.D.2d 735, 606 N.Y.S.2d 913).To extinguish an easement by abandonment, there must be unequivocal conduct on the part of the owner of the easement definitely evincing an intention to abandon (see, Permanent Mission of Islamic Republic of Iran v. 1030 Fifth Ave. Corp., 833 F.Supp. 318, 322, aff'd(2nd Cir.), 23 F.3d 397;see also, Gerbig v. Zumpano, supra ).

In the present case, the defendant, the owner of a parcel of real property burdened by an easement which was created in 1909, offered sufficient evidence to establish that the plaintiff had abandoned its intention to use the easement for the limited purpose for which it had been created (see, Snell v. Levitt, 110 N.Y. 595, 18 N.E. 370;see also, Wilson v. Ford, 148 App.Div. 307, 314-315, 133 N.Y.S. 33;Norris v. Hoffman, 133 App.Div. 596, 118 N.Y.S. 156, aff'd197 N.Y. 578, 91 N.E. 1118).The original easement agreement provided that the easement would be used for private purposes and only for the benefit of the residences on the dominant estate land.The agreement specifically excluded any uses for public, commercial, manufacturing, or business purposes.The plaintiff changed the nature of the dominant estate by making the property a public park, and indicated that it intended to use the easement for construction, maintenance, and emergency access...