Rose v. La Joux
| Decision Date | 04 April 1983 |
| Citation | 460 N.Y.S.2d 612,93 A.D.2d 817 |
| Parties | James H. ROSE, Jr., Respondent, v. Alain LA JOUX a/k/a Alan La Joux, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Pinkus, Lipton & Brown, New City (Ralph S. Joseph, New City, of counsel), for appellant.
Arthur Moskoff, New City, for respondent.
Before TITONE, J.P., MANGANO, GIBBONS and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action for (1) a declaration that plaintiff was the owner of an easement by prescription over defendant's property, (2) injunctive relief, and (3) damages, defendant appeals from an order and judgment (one paper) of the Supreme Court, Rockland County, entered March 9, 1982, which, inter alia, declared plaintiff to be the owner of an easement in a 20-foot right of way located on defendant's property. (The order and judgment was entered pursuant to an order of the same court, dated January 27, 1982, which [1] granted plaintiff's motion "to reargue and renew" a prior order of the same court dated October 13, 1981, which, inter alia, denied plaintiff's motion insofar as it was for summary judgment and [2] upon reargument, granted plaintiff's motion insofar as it was for summary judgment.)
Order and judgment entered March 9, 1982 reversed, without costs or disbursements, order dated January 27, 1982 vacated, and, upon reargument, the order dated October 13, 1981, which, inter alia, denied plaintiff's motion insofar as it was for summary judgment, is adhered to.
Although defendant concedes, on appeal, as he did before Special Term, that plaintiff has an easement in a right of way located on defendant's property for the purpose of ingress and egress to the main public highway known as Thiells Road, the affidavits submitted in support of, and in opposition to, plaintiff's initial motion, inter alia, for summary judgment present issues of fact, which can only be resolved at trial, as to the precise extent and nature of the prescriptive easement claimed by plaintiff in his complaint, viz., (1) whether the prescriptive easement is limited to the gravel portion of the right of way or extends further to a width of 20 feet and (2) whether and to what extent the prescriptive easement includes the use of commercial vehicular traffic (see, generally, Ann. Extent of, and permissible variations in, use of prescriptive easements of way, 5 A.L.R.3d 439; American Bank Note Co. v. New York Elevator R. Co., 129 N.Y. 252, 29 N.E. 302). Accordingly, Special Term erred...
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