Appleby v. Evans

23 A.D.3d 323, 804 N.Y.S.2d 111

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 2005
• Status: Published

Opinion

In an action pursuant to RPAPL article 15 for a judgment declaring the validity of an easement and for a permanent injunction preventing interference with use of the easement, the plaintiffs Karen Appleby and Gareth Hougham appeal from a judgment of the Supreme Court, Westchester County (Donovan, J.), entered May 18, 2004, which, after a nonjury trial, inter alia, declared that the easement was limited solely to use as a pedestrian right-of-way.

Ordered that the appeal by the plaintiff Gareth Hougham is dismissed as academic; and it is further,

Ordered that the judgment is affirmed insofar as appealed from by the plaintiff Karen Appleby; and it is further,

Ordered that one bill of costs is awarded to the defendants.

“ ‘ “[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to the credibility of witnesses” ’ ” (Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992], quoting Thoreson v Penthouse Intl., 179 AD2d 29, 31 [1992], quoting Claridge Gardens v Menotti, 160 AD2d 544, 544-545 [1990]). There is no basis to disturb the Supreme Court’s determination, as the evidence established that the easement in question was intended to afford a right of egress and ingress limited solely to use as a pedestrian right-of-way, and not for vehicular ingress and egress.

The remaining contentions of the appellant Karen Appleby are without merit. H. Miller, J.P., Cozier, Ritter and Dillon, JJ., concur.