Filby v. Brooks

Oct 8, 1985
Versions:66 N.Y.2d 640
485 N.E.2d 1027
495 N.Y.S.2d 362
1985 N.Y. LEXIS 17174

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

This dispute among neighbors concerns an easement contained in plaintiff’s deed, which gives her a right of ingress and egress over Flower Hill Road. Plaintiff seeks an injunction requiring defendants to remove a barrier from its new location on Flower Hill Road and restore it to its original location on Flower Hill Road. Whatever rights defendants may have acquired to the easement by adverse possession, based on the long-continued existence of a barrier at one location on Flower Hill Road (see, Brand v Prince, 35 NY2d 634, 636; Belotti v Bickhardt, 228 NY 296, 302), defendants obtained no right to move that barrier to a new location on Flower Hill Road so as to further restrict plaintiff’s use of the road, a move which was promptly objected to by plaintiff. While defendants contend that removal of the barrier they placed at the new location would require entry onto the property of a nonparty, plaintiff’s property interest in ingress and egress permits removal of the barrier on the road. We therefore affirm the order of the Appellate Division directing removal of the barrier from its new location, and reach no other issue.

*642Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed, with costs, in a memorandum.