Gherardi v. Burke

144 A.D.2d 339, 534 N.Y.S.2d 866, 1988 N.Y. App. Div. LEXIS 11198

Opinion

In an action, inter alia, for a judgment declaring that the plaintiff has an express easement-of-way over certain property owned by the defendants^ the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated July 2, 1987, as denied their motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint, or, in the alternative, for summary judgment.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the defendants’ motion is granted to the extent that the complaint is dismissed with leave to the plaintiff to serve an amended complaint within 60 days after service upon him of a copy of this decision and order with notice of entry.

We conclude that to the extent that the defendants sought dismissal pursuant to CPLR 3211 (a) (1) of the plaintiffs cause of action for a declaration of an express easement in favor of the plaintiff over the defendants’ property, the motion should have been granted. The defendants’ documentary evidence adequately established that an express easement did not exist. We agree, however, that the facts of this case indicate that the plaintiff may be entitled to an implied easement (49 NY Jur 2d, Easements, § 14). Accordingly, leave is granted to the plaintiff to serve an amended complaint asserting a cause of action for an implied easement. Mollen, P. J., Brown, Rubin and Kooper, JJ., concur.