MICHALSKI v. DECKER (2005)

In an action pursuant, inter alia, to RPAPL article 15 for a judgment declaring that the plaintiff has an easement over a portion of the property of the defendants Joseph Decker, Regina Decker, and Robert Richner, the plaintiff appeals from so much of an order of the Supreme Court, Orange County (McGuirk, J.), entered September 2, 2003, as denied his motion for summary judgment.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiff failed to establish his entitlement to summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Since issues of fact exist as to the intention of the original grantor at the time of the original conveyance, the plaintiff failed to establish his entitlement to an implied easement as a matter of law (see O'Connor v. Demarest, 280 A.D.2d 878, 720 N.Y.S.2d 648;  Palma v. Mastroianni, 276 A.D.2d 894, 714 N.Y.S.2d 537;  Manhattan Beach Community Group v. Laboz, 224 A.D.2d 394, 638 N.Y.S.2d 112;  cf. Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 28-29, 150 N.Y.S.2d 13, 133 N.E.2d 505;  Fischer v. Liebman, 137 A.D.2d 485, 487, 524 N.Y.S.2d 720).

 Absolute necessity in fact is the standard for a finding of an easement by necessity (see Town of Pound Ridge v. Golenbock, 264 A.D.2d 773, 695 N.Y.S.2d 388;  Van Schaack v. Torsoe, 161 A.D.2d 701, 703, 555 N.Y.S.2d 836).   Here, an issue of fact exists as to whether there is an alternative means of access to the plaintiff's property (see Nieto v. Ceraso, 134 A.D.2d 579, 580, 521 N.Y.S.2d 481).

FLORIO, J.P., COZIER, RITTER and SKELOS, JJ., concur.