Schwarz v. Village of Hastings-on-Hudson

96 A.D.2d 533, 465 N.Y.S.2d 43, 1983 N.Y. App. Div. LEXIS 19056

Opinion

— Appeal by plaintiffs from an order of the Supreme Court, Westchester County (Ferrara, J.), dated November 10, 1981, which, inter alia, granted the cross motion of the defendant to dismiss the complaint. Order affirmed, with costs. The allegations contained in the complaint and the several affidavits submitted by plaintiffs in opposition to the cross motion of the defendant to dismiss that complaint failed to establish a cause of action for false imprisonment. Accordingly the complaint was properly dismissed pursuant to CPLR 3211 (subd [a], par 7), for failure to state a cause of action. Special Term’s determination of the rights of the parties in the real property which is the subject of dispute between them was not necessary to its decision, the issue has not been considered by this court, and such determination is not binding upon the parties with respect to any other action or proceeding. We note that plaintiffs, as owners of land abutting the property which is the subject of dispute between the parties, may have acquired an express or implied private easement of access across that property (Lord v Atkins, 138 NY 184, 191; see, generally, 5 Warren’s Weed, NY Real Prop [4th ed], Streets & Highways, §§ 9.01-9.04; 2 Warren’s Weed, NY Real Prop [4th ed], Easements, §§ 22.04, 22.05, 28.01). While an action may be commenced to recover damages for interference with such a property right, the plaintiffs’ complaint has not stated such a cause of action. Gibbons, J.P., Weinstein, Bracken and Niehoff, JJ., concur.