Salmon v. Mack

Appellate Division of the Supreme Court of New York

Salmon v. Mack

228 A.D.2d 576, 644 N.Y.2d 541, 644 N.Y.S.2d 541, 1996 N.Y. App. Div. LEXIS 7157

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 17, 1996

StatusPublished

This text of 228 A.D.2d 576 (Salmon v. Mack) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salmon v. Mack, 228 A.D.2d 576, 644 N.Y.2d 541, 644 N.Y.S.2d 541, 1996 N.Y. App. Div. LEXIS 7157 (N.Y. Ct. App. 1996).

Pincite

Opinion

In 1947, the defendants’ predecessors-in-title were deeded a 10-foot-wide easement along the western boundary of the grantor’s adjoining property for access to a public highway. The plaintiffs purchased the adjoining property (the servient estate) in 1984 and commenced this action in 1993, inter alia, for a declaration that the defendants had abandoned the easement. We agree with the court’s determination that the plaintiffs failed to meet their burden of proving, by clear and convincing evidence, that the defendants intended to abandon the easement (see, Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 39-40; Gerbig v Zumpano, 7 NY2d 327, 330-331; Wallkill Farms Homeowners Assn. v Velazquez, 205 AD2d 681).

The plaintiffs’ remaining contentions regarding the existence and location of the easement are without merit.

We note that since this is a declaratory judgment action, the court should have directed the entry of a declaration in favor of the defendants rather than dismissal of the first cause of action (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Bracken, J. P., O’Brien, Joy and Goldstein, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In 1947, the defendants’ predecessors-in-title were deeded a 10-foot-wide easement along the western boundary of the grantor’s adjoining property for access to a public highway. The plaintiffs purchased the adjoining property (the servient estate) in 1984 and commenced this action in 1993, inter alia, for a declaration that the defendants had abandoned the easement. We agree with the court’s determination that the plaintiffs failed to meet their burden of proving, by clear and convincing evidence, that the defendants intended to abandon the easement (see, Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 39-40; Gerbig v Zumpano, 7 NY2d 327, 330-331; Wallkill Farms Homeowners Assn. v Velazquez, 205 AD2d 681).

The plaintiffs’ remaining contentions regarding the existence and location of the easement are without merit.

We note that since this is a declaratory judgment action, the court should have directed the entry of a declaration in favor of the defendants rather than dismissal of the first cause of action (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Bracken, J. P., O’Brien, Joy and Goldstein, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

228 A.D.2d 576, 644 N.Y.2d 541, 644 N.Y.S.2d 541, 1996 N.Y. App. Div. LEXIS 7157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salmon-v-mack-nyappdiv-1996.

Opinion

Related

Cite This Page — Counsel Stack