REDWOOD CONSTRUCTION CORP v. West Branch Conservation Association, Inc., Appellant. (1997)

In an action, inter alia, for a judgment declaring the rights of the parties with respect to a certain easement, the defendant West Branch Conservation Association, Inc. appeals from so much of an order of the Supreme Court, Rockland County (Bergerman, J.), dated March 20, 1996, as denied that branch of its cross motion which was to dismiss the complaint insofar as asserted against it.

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

The plaintiff Redwood Construction Corp. (hereinafter Redwood), as the contract-vendee of an easement of way across property burdened by a “conservation easement” granted to the defendant West Branch Conservation Association, Inc. (hereinafter West Branch), has standing to challenge the construction and application of the conservation easement to the easement of way which it has contracted to purchase (see, Community Board 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 615 N.Y.S.2d 644, 639 N.E.2d 1;  Larsen v. Incorporated Vil. of Nissequogue, 192 A.D.2d 585, 595 N.Y.S.2d 829;  Weinstein v. Marks, 167 A.D.2d 704, 563 N.Y.S.2d 281;  Bean v. Walker, 95 A.D.2d 70, 464 N.Y.S.2d 895).   The argument of West Branch, raised for the first time on appeal, that the Redwood contract for the easement has been cancelled, is not properly before this court (see, Fischer v. Liebman, 137 A.D.2d 485, 524 N.Y.S.2d 720).   In any event, whether or not the Redwood contract was validly cancelled presents a question of fact on this record (see, Poquott Dev. Corp. v. Johnson, 104 A.D.2d 442, 478 N.Y.S.2d 960).

MEMORANDUM BY THE COURT.