Davi v. Occhino

84 A.D.3d 1011, 923 N.Y.S.2d 338

• 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 recover damages for trespass and private nuisance, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Schulman, J.), dated August 19, 2009, as granted the defendant’s motion to confirm a referee’s report (Geller, R.), dated March 5, 2009, made after a hearing, recommending that judgment be entered in favor of the defendant dismissing the complaint, and denied his cross motion to reject the report.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion to confirm the referee’s report recommending that judgment be entered in her favor dismissing the complaint, and denied the plaintiffs cross motion to reject the report. The evidence presented at the hearing demonstrates that the subject express easement grants the defendant a right of way “for the ingress and egress of not more than two pleasure cars” to be housed in a garage on the plaintiffs property. The record supports a finding that this easement carries with it the right to “any reasonable parking of those vehicles used for ingress and egress . . . incidental to the primary purpose of the easement” (Albright v Davey, 68 AD3d 1490, 1493 [2009]; see Phillips v ladarola, 81 AD3d 1234 [2011]).

The plaintiffs remaining contentions are without merit. Dillon, J.E, Covello, Eng and Chambers, JJ., concur.