Bilello v. Pacella

223 A.D.2d 522, 636 N.Y.S.2d 112, 1996 N.Y. App. Div. LEXIS 164

Opinion

In an action, inter alia, to enjoin the defendants from making repairs or improvements to the parties’ common driveway located on an easement, the defendants appeal from so much of an order of the Supreme Court, Queens County (Dunkin, J.), dated April 7, 1994, as directed the defendants to restore a plot of grass located on the easement.

Ordered that the order is reversed insofar as appealed from, with costs, and so much of the order as directed the defendants to restore the plot of grass located on the easement is vacated.

The defendants hired a construction crew to repave a common driveway located on an easement between the defendants’ house and the plaintiff’s house. Contrary to the plaintiff’s contention, the Supreme Court erred in directing the defendants to restore the plot of grass located on the easement since the grass plot interfered with or otherwise frustrated the easement. The defendants, having a right of passage for vehicles over the easement, have a right to maintain it in a reasonable condition for such use (see, Missionary Socy. v Evrotas, 256 NY 86). Thus, under the circumstances of this case, the plaintiff has no right to maintain a grass plot on the easement. Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.