DeCesare v. Feldmeier

Resettled judgment, Supreme Court, Bronx County (Herbert Shapiro, J.), entered September 23, 1991, which, inter alia, declared that plaintiffs do not have a twenty-foot easement over the subject property, and dismissed the complaint, unanimously affirmed, without costs. An easement, regardless of how created, may be extinguished by abandonment (Rogers v Germano, 300 NY 251; Stillman v City of Olean, 228 NY 322), the question of aban 221 donment generally being an issue of fact (see, Gerbig v Zumpano, 7 NY2d 327). There is no reason in this case to disturb the trial court’s findings of fact. The easement in question was for many years prior to plaintiffs’ acquiring title blocked at one end by the use of a garden, and, indeed, plaintiffs’ own title survey noted specifically that it apparently was not in use. Accordingly, plaintiffs were on notice that the twenty-foot easement was of questionable validity, notwithstanding a declaration of easement filed prior to their acquiring the property and the recitation of the easement in their deed. It is also pertinent that plaintiffs have ingress and egress to the main street via another easement. We have considered plaintiffs’ other contentions, as well as those of defendants-cross-appellants, and find them to be without merit. Concur—Sullivan, J. P., Milonas, Rosenberger, Wallach and Ross, JJ.