Welsh v. Okolie

Oct 11, 2005
Versions:22 A.D.3d 572
801 N.Y.S.2d 744

In an action, inter alia, for a judgment declaring that the plaintiffs have an easement over a parcel of property owned by the defendants Cyril Okolie and Phyllis Okolie, the defendants Cyril Okolie and Phyllis Okolie appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Suffolk County (Oliver, J.), dated May 17, 2004, which, among other things, denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiffs’ current claims are not barred by the doctrines of res judicata or collateral estoppel, as they could not have been raised in a prior proceeding pursuant to CPLR article 78 challenging the granting of area variances to the appellants (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343 [1999]). In addition, triable issues of fact exist, inter alia, as to whether the plaintiffs have an implied easement by grant over the appellants’ property. “[W]hen property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant” (Bogan v Town of Mt. Pleasant, 278 AD2d 264, 264-265 [2000]; see Sullivan v Markowitz, 239 AD2d 404 [1997]; Fischer v Liebman, 137 AD2d 485, 487 [1988]). The Supreme Court therefore properly denied the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them.

The appellants’ remaining contentions are without merit.

Cozier, J.P., Krausman, Goldstein and Lunn, JJ., concur.