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DAVID MEYEROWITZ & SON v. 61 GREENPOINT AVE. (05/12/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 12, 1969

DAVID MEYEROWITZ & SON, INC., RESPONDENT,
v.
61 GREENPOINT AVE., INC., ET AL., APPELLANTS

In an action brought pursuant to article 6 of the Real Property Actions and Proceedings Law to recover possession of real property, defendants appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Kings County, dated May 23, 1968, as, upon plaintiff's motion for summary judgment, adjudged that defendants were the owners of a bridge and passageway which encroached over plaintiff's property and directed defendants to forthwith remove said bridge and passageway from plaintiff's property at defendants' expense.

Brennan, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

In our opinion, the Special Term correctly adjudged that defendants and persons claiming title or possession under them were excluded from the use, occupancy or possession of that portion of the bridge and passageway which encroached over plaintiff's property; and properly directed defendants to forthwith cease and desist from the use and occupancy of said portion of the bridge and passageway. However, in our view the proof adduced was insufficient to show who owned the structure, particularly that portion thereof which is over plaintiff's property. In consequence, no obligation was imposed upon defendants to remove the structure; and relief in this respect should not have been summarily granted.

Disposition

Judgment modified, on the law and facts, by striking out the second, fourth and fifth decretal paragraphs thereof. As so modified, judgment affirmed, with costs to appellants.

19690512

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