Clifford v. Delaney

84 A.D.3d 1004, 922 N.Y.S.2d 809

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 2011
• Status: Published

Opinion

In an action, inter alia, to permanently enjoin the defendants Stephen Delaney and Lucille Buser from constructing a fence in an area allegedly burdened by a scenic easement, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Molia, J.), dated November 13, 2009, which denied their motion to renew their prior cross motion for summary judgment declaring, inter alia, that the easement prohibits the construction of the fence, which had been denied in a prior order of the same court dated December 15, 2008.

Ordered that the order is reversed, on the law, with costs, the plaintiffs motion to renew is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the plaintiffs’ cross motion for summary judgment on the merits.

Under the circumstances of this case, the Supreme Court should have granted the plaintiffs leave to renew their cross motion for summary judgment.

The respondents’ remaining contentions are without merit.

Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a determination of the plaintiffs’ cross motion for summary judgment on the merits. Rivera, J.E, Skelos, Sgroi and Miller, JJ., concur.