SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 1, 1968
IN THE MATTER OF WAPPINGER APARTMENTS SECOND CORP., APPELLANT,
TOWN OF WAPPINGER ET AL., RESPONDENTS
Judgment of the Supreme Court, Rockland County, dated August 21, 1967, affirmed, without costs. 55 Misc. 2d 75.
Beldock, P. J., Christ, Rabin, Munder and Martuscello, JJ., concur.
In our opinion, petitioner has not sustained its burden of showing a clear legal right to the relief requested. While we have treated petitioner's affidavit as a reply to respondent's affirmative defenses, we hold that no issues of fact exist requiring a trial. We find that there is a reasonably suitable alternative access from petitioner's property to the public highways (cf. Matter of Syosset Ind. Bldrs. v. Town of Oyster Bay Highway Dept., 24 A.D.2d 763). We are further of the opinion that on this record the proceeding is not barred by the provisions of CPLR 217. Since the respondents have not alleged the specific dates of their refusals to comply with petitioner's demands, the elapsed period between the refusals and the institution of this proceeding cannot be measured (see Matter of O'Buck v. City of Yonkers, 2 A.D.2d 775).
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