Kotraba v. Akers

—In an action pursuant to RPAPL article 15 to determine the defendants’ right to an easement over the plaintiff’s land, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Fitzer, J.H.O.), dated September 21, 1990, which, after a nonjury trial, is in favor of the defendant dismissing the complaint. Ordered that the judgment is affirmed, with costs. The plaintiff failed to prove by clear and convincing evidence that the defendants intended to abandon the easement in question (see, Strevell v Mink, 6 NY2d 850; Briggs v Di Donna, 176 AD2d 1105; Carnemella v Sadowy, 147 AD2d 874; see also, 2 Warren’s Weed, New York Real Property, Easements, § 12.01 [4th ed]). Therefore, the trial court properly dismissed the complaint. Lawrence, J. P., Ritter, Copertino and Santucci, JJ., concur.