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Joy Builders, Inc. v. Shapiro

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 2, 2008

JOY BUILDERS, INC., RESPONDENT,
v.
MILTON SHAPIRO, ET AL., APPELLANTS.

In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that the plaintiff has an easement by implication over a portion of the defendants' property, the defendants appeal from an order of the Supreme Court, Rockland County (Sherwood, J.), dated December 13, 2007, which granted the plaintiff's renewed motion for summary judgment.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

DAVID S. RITTER, J.P., ANITA R. FLORIO, HOWARD MILLER and MARK C. DILLON, JJ.

(Index No. 1027/04)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the renewed motion for summary judgment is denied.

The plaintiff claims, inter alia, that it has an easement by implication over a paper road that crosses the defendants' property, in order to access an intersecting public road. It was incumbent upon the plaintiff to make a prima facie showing, by clear and convincing evidence, that it was the intent of the original grantor, at the time of the original conveyance, to create the subject easement (see H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d 652, 654; Michalski v Decker, 16 AD3d 469, 470; Asche v Land & Bldg. Known as 64-29 232nd St., 12 AD3d 386, 387; Palma v Mastroianni, 276 AD2d 894, 894). The plaintiff failed to make that showing. Accordingly, its renewed motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

In light of the foregoing, we need not address the parties' remaining contentions.

RITTER, J.P., FLORIO, MILLER and DILLON, JJ., concur.

20081202

© 1992-2008 VersusLaw Inc.



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