Shortt v. Bleier

193 A.D.2d 1099, 598 N.Y.S.2d 632

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1993
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly directed defendant to remove the dock that he had erected at the end of the pathway leading to the shore of the St. Lawrence River. The pathway is part of a system of roads depicted in a subdivision map filed on September 8, 1931 by the parties’ predecessor in title. The property was originally conveyed in 1932 "subject to the right of way and use in common of all roadways designated on said map” and the parties’ deeds explicitly refer to the filed subdivision map. The court properly concluded that an easement in the pathway was created for the benefit of plaintiffs’ lots (see, Borducci v City of Yonkers, 144 AD2d 321, 323; Fischer v Liebman, 137 AD2d 485, 487) and that defendant’s dock interferes with plaintiffs’ right to full and complete use of the easement (see, Van De Carr v Schloss, 277 App Div 475, 477; 49 NY Jur 2d, Easements, § 122).

We need not consider the trial court’s conclusion, in its memorandum decision, that defendant’s tax deed has "no validity in law or fact.” The validity of defendant’s tax deed has no bearing on the propriety of the judgment directing defendant to remove the dock. Further, the determination concerning the validity of the tax deed is not part of the judgment and thus it has no legal effect (see, Towley v King Arthur Rings, 40 NY2d 129, 132). (Appeal from Judgment of Supreme Court, Jefferson County, Gilbert, J.—Permanent Injunction.) Present—Green, J. P., Pine, Boomer, Davis and Boehm, JJ.