| Board of Mgrs. of Bayside Plaza Condominium v Mittman |
| 2008 NY Slip Op 03157 [50 AD3d 718] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Board of Managers of Bayside Plaza Condominium,Appellant, v Robert Mittman, Respondent. |
—[*1] Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Kevin Schlosser of counsel), forrespondent.
In an action, inter alia, for a judgment declaring the respective rights of the parties in aneasement and to recover damages for violation of the easement, the plaintiff appeals (1), aslimited by its brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.),dated November 8, 2006, as denied those branches of its motion which were for summaryjudgment on the first, second, third, fourth, and fifth causes of action and granted that branch ofthe defendant's cross motion which was for summary judgment dismissing the complaint, and(2), as limited by its brief, from so much of a judgment of the same court entered January 11,2007, as declared that the scope of the relevant easement permitted the defendant to maintainheating, ventilating, and air conditioning equipment on the second floor roof terrace on thesubject premises.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on appeal from the order are brought up for review andhave been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
Where, as here, an express grant of an easement isambiguous, the court will consider surrounding circumstances tending to show the intention ofthe parties (see Loch Sheldrake Assoc. v Evans, 306 NY 297, 304 [1954]; Perillo vCredendino, 264 AD2d 473 [1999]; Spiak v Zeglen, 255 AD2d 754, 757 [1998];Sordi v Adenbaum, 143 AD2d 898 [1988]; Phillips v Jacobsen, 117 AD2d 785,786 [1986]). The evidence presented demonstrated that shortly after the easement was granted in1991 heating, ventilating, and air conditioning (hereinafter HVAC) units were installed on thesecond floor roof terrace, which is located "over" the defendant's commercial units. The HVACunits remained until 2005 when the condominium sought to have them removed. Based on suchevidence, the parties clearly intended that the defendant would be able to install and maintainHVAC units on the second floor terrace (see Sordi v Adenbaum, 143 AD2d at 898-899;Matzell v Distaola, 105 AD2d 500, 501-502 [1984]). Consequently, the Supreme Courtproperly granted that branch of the defendant's cross motion which was for summary judgmentdismissing the first cause of action, alleging a violation of the easement and, further, properlydeclared, with respect to the second cause of action, that the scope of the relevant easementpermitted him to maintain HVAC equipment on the second floor roof terrace (see OpticalExch. of 35th St. v Soung E. Hong, 292 AD2d 218 [2002]).
The Supreme Court also properly granted those branches of the defendant's cross motionwhich were for summary judgment dismissing the third and fourth causes of action allegingtrespass and nuisance, respectively (see Adams v Berkowitz, 212 AD2d 557, 558 [1995];Krosky v Hatgipetros, 150 AD2d 344, 345 [1989]).
Since the defendant was neither in violation of the easement nor committing a nuisance onthe property, the Supreme Court properly granted that branch of his motion which was forsummary judgment dismissing the fifth cause of action alleging breach of the condominium'sbylaws.
In light of our determination, the parties' remaining contentions need not be addressed.Miller, J.P., Covello, Eng and Chambers, JJ., concur.