| Ickes v Buist |
| 2009 NY Slip Op 09192 [68 AD3d 823] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Melvin T. Ickes et al., Respondents, v Christiaan Buist etal., Appellants. |
—[*1] John R. Marvin, Rhinebeck, N.Y., for respondents.
In an action for injunctive relief and to recover damages for injury to property, thedefendants appeal, as limited by the brief, (1) from stated portions of an order of the SupremeCourt, Dutchess County (Brands, J.), dated August 4, 2008, which, inter alia, granted that branchof the plaintiffs' motion which was for leave to reargue that branch of their cross motion whichwas for summary judgment on the cause of action for injunctive relief, which had beendetermined in an order dated April 28, 2008, and, upon reargument, in effect, vacated thedetermination in the order dated April 28, 2008, denying that branch of the plaintiffs' crossmotion, and thereupon granted that branch of the cross motion, and (2) from so much of an orderof the same court entered December 11, 2008, as granted that branch of the plaintiffs' motionwhich was for summary judgment on the cause of action to recover damages for injury toproperty.
Ordered that the appeals by the defendant Young Ja Buist are dismissed as abandoned(see 22 NYCRR 670.8 [e] [1]); and it is further,
Ordered that the orders dated August 4, 2008, and entered December 11, 2008, are affirmedinsofar as appealed from by the defendant Christiaan Buist; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The plaintiffs are the owners of property in Rhinebeck which, pursuant to a deed dated May6, 1959, includes the grant of a right-of-way over property now owned by the defendants. Thedeed provides that "[t]his right-of-way is to be used in common with others for ingress andegress until such time as the said right-of-way is accepted as a public street." In July 2007 theplaintiffs hired a paving company to repave their driveway, including a portion which extendsthrough the right-of-way easement as a "driveway apron" leading to a public thoroughfaredesignated as Maplewood Drive. After the defendants attempted to remove the repaved portionof the driveway within the easement, the plaintiffs commenced this action seeking, inter alia, aninjunction prohibiting the defendants from interfering with their use of the driveway, includingthe portion located within the easement. Upon reargument, the Supreme Court, in an order datedAugust 4, 2008, inter alia, granted that branch of the plaintiffs' cross motion which was for [*2]summary judgment on the cause of action for injunctive relief. Weaffirm that order insofar as appealed from by the defendant Christiaan Buist.
" 'Motions for reargument are addressed to the sound discretion of the court which decidedthe prior motion and may be granted upon a showing that the court overlooked ormisapprehended the facts or law or for some other reason mistakenly arrived at its earlierdecision' " (Barnett v Smith, 64AD3d 669, 670-671 [2009], quoting E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654[2007] [internal quotation marks omitted]; see CPLR 2221 [d]). Here, the plaintiffs, insupport of their cross motion for summary judgment, established their prima facie entitlement tojudgment as a matter of law on their cause of action for injunctive relief by demonstrating thatthe repavement of the driveway apron did not expand the driveway, and was necessary toeffectuate the exercise and enjoyment of the easement (see Hoeffner v John F. Frank,Inc., 302 AD2d 428, 430 [2003]). The plaintiffs, "having a right of passage for vehicles overthe easement, have a right to maintain it in a reasonable condition for such use" (Bilello vPacella, 223 AD2d 522 [1996]; see Missionary Socy. of Salesian Congregation vEvrotas, 256 NY 86, 90-91 [1931]; Schoolman v Mannone, 226 AD2d 521, 522[1996]). In opposition, the defendants failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Since the Supreme Court overlooked ormisapprehended the relevant facts and law in mistakenly arriving at its initial determination, itproperly granted leave to reargue and, upon reargument, granted that branch of the plaintiffs'cross motion which was for summary judgment on the cause of action for injunctive relief.
The remaining contentions of the defendant Christiaan Buist are without merit. Dillon, J.P.,Florio, Miller and Angiolillo, JJ., concur.