Billes v. Eddy

236 A.D.2d 853, 653 N.Y.S.2d 900, 1997 N.Y. App. Div. LEXIS 1787

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiffs’ motion for summary judgment dismissing defendant’s affirmative defenses in this trespass action. Plaintiffs failed to meet their initial burden by offering evidentiary proof in admissible form that defendant does not have an implied easement based upon existing use (see, Monte v DiMarco, 192 AD2d 1111, lv denied 82 NY2d 653; see generally, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,1067). Plaintiffs presented no admissible evidence establishing that there was no servitude on the property now owned by plaintiffs in favor of property now owned by defendant prior to severance of title in 1929. (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Callahan, Doerr and Boehm, JJ.