| Guzzone v Brandariz |
| 2008 NY Slip Op 09559 [57 AD3d 481] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Alice Guzzone, Respondent, v Linda Duffy Brandariz et al.,Appellants. |
—[*1] Lindenbaum & Young, Brooklyn, N.Y. (Alan H. Young of counsel), for respondent.
In an action, inter alia, pursuant to RPAPL article 15 to extinguish an easement, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dabiri,J.), dated July 31, 2007, as denied that branch of their motion which was for summary judgment ontheir counterclaims for injunctive relief, and granted that branch of the plaintiff's cross motion which wasfor summary judgment dismissing those counterclaims.
Ordered that the order is affirmed insofar as appealed from, with costs.
Express easements are governed by the intent of the parties (see Lewis v Young, 92NY2d 443, 449 [1998]; Estate Ct., LLC vSchnall, 49 AD3d 1076, 1077 [2008]). The declaration of easement in this case was for thelimited purpose of giving the defendants vehicular ingress to and egress from the subject real property.Accordingly, the easement provided the defendants with a right of passage rather than a right in thephysical passageway itself (see Lewis v Young, 92 NY2d at 449; Cypress Hills Cemetery v City of NewYork, 35 AD3d 788, 789 [2006]), and the plaintiff, as the owner of the servient parcel, could"narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is notimpaired" (Lewis v Young, 92 NY2d at 449; see Sambrook v Sierocki, 53 AD3d 817, 818 [2008]).
Contrary to the defendants' contention, they failed to demonstrate their prima facie entitlement tojudgment as a matter of law on their counterclaims for injunctive relief compelling the plaintiff to removeair-conditioning units from the right-of-way that is encumbered by the easement in dispute and to refrainfrom interfering with their easement rights. Indeed, in the affidavits submitted by the defendants, it wasconceded that the defendants were still able to use the [*2]right-of-wayfor ingress to and egress from the real property. Therefore, the defendants' failure to make a prima facieshowing required denial of that branch of their motion, regardless of the sufficiency of the plaintiff'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).Furthermore, the plaintiff demonstrated her entitlement to judgment as a matter of law dismissing thosecounterclaims, since she submitted ample evidence that the defendants' right-of-way was notsignificantly impaired by the installation of the air-conditioning units, and the defendants failed to raise atriable issue of fact in opposition to that showing (see Zuckerman v City of New York, 49NY2d 557 [1980]; Mastrangelo v Avello, 305 AD2d 557, 558 [2003]; Minogue vKaufman, 124 AD2d 791, 792 [1986]).
The plaintiff's remaining contentions are not properly before this Court. Mastro, J.P., Rivera, Fisherand Eng, JJ., concur. [See 16 Misc 3d 1120(A), 2007 NY Slip Op 51521(U).]