Rebentisch v. Donovan

21 A.D.3d 542, 799 N.Y.S.2d 919

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 22, 2005
• Status: Published

Opinion

In an action, inter alia, to enjoin the defendants from obstructing a right-of-way easement, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (Shapiro, J.), dated September 13, 2004, as denied their cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that there are triable issues of fact precluding the granting of summary judgment to the defendants. As the Court of Appeals held in Lewis v Young (92 NY2d 443, 452 [1998]) “a landowner, consonant with the beneficial use and development of its property, can move [the] right of way ... so long as the change does not frustrate the parties’ intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way.” Here, triable issues of fact exist as to whether the proposed relocation of the right-of-way easement did not significantly frustrate the original grantor’s intent or object in creating the right-of-way, did not unreasonably interfere or increase the burden on the plaintiffs as the easement holders, or did not lessen the usefulness of the right-of-way (see Lewis v Young, supra at 452; Robinson v Eirich, 2 AD3d 617, 618 [2003]; Hulse v Mack, 261 AD2d 580 [1999]; see also Lucas v Kandis, 303 AD2d 649 [2003]; Henricksen v Trails End Co., 303 AD2d 458 [2003]). Krausman, J.P., Luciano, Spolzino and Lifson, JJ., concur.