| N.Y. App. Div. | Apr 24, 2007
In an action pursuant to RPAPL article 15, inter alia, in effect, for a judgment declaring that Katherine Martucci does not
Ordered that the notice of appeal from the order entered September 18, 2006, is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,
Ordered that the judgment is affirmed insofar as appealed from, with costs.
Katherine Martucci owns a parcel of land that borders a parcel owned by Robert Mackie and Katherine Mackie on the north. A private roadway known as the “Traveled Way” which leads to a public street, begins on Katherine Martucci’s property, and runs south through the Maekies’ property, and then through a parcel of land owned by Frank Martucci and the Mackies, and then through a parcel of land owned by a nonparty that borders the street. At one point, Bernard Kayden, who used to live in a house on what is now Katherine Martucci’s property, and who used to use the Traveled Way to access that house, owned all of these parcels of land.
On that branch of their motion which was for summary judgment on their counterclaim for a judgment declaring that Katherine Martucci had an easement created by express grant over the portion of the Traveled Way that was on the Maekies’ property, Frank Martucci and Katherine Martucci demonstrated their entitlement to judgment as a matter of law by providing evidence establishing that when Kayden conveyed the above-mentioned parcels of land, he retained an easement over all of the Traveled Way for the benefit of any house that was or might be built on those parcels of land, and that Katherine Martucci shared that easement (see Green v Mann, 237 AD2d 566, 566-567 [1997]). Since, in response, the Maekies failed to raise a triable issue of fact, the court correctly granted that branch of the Martuccis’ motion.