ZOTOS v. MARKETSPAN CORPORATION

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Supreme Court, Appellate Division, Second Department, New York.

Michael R. ZOTOS, appellant, v. MARKETSPAN CORPORATION, d/b/a Keyspan Energy, et al., respondents.

Decided: November 27, 2000

WILLIAM D. FRIEDMANN, J.P., GLORIA GOLDSTEIN, HOWARD MILLER and ROBERT W. SCHMIDT, JJ. Michael R. Zotos, Holtsville, N.Y., appellant pro se. Cullen and Dykman, Garden City, N.Y. (Antonia M. Donohue of counsel), and John E. Reilly, Hicksville, N.Y. (Donald J. Rassiger of counsel), for respondents (one brief filed).

In an action pursuant to RPAPL article 15, inter alia, for a judgment declaring that the defendants do not have an easement over the plaintiff's property, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated March 31, 2000, as, upon renewal, denied his motion for summary judgment on the complaint and granted the defendants' cross motion for summary judgment dismissing the complaint, and (2) from a judgment of the same court, entered June 14, 2000, which dismissed the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is modified by adding thereto a provision declaring that the defendants have an easement over the plaintiff's property;  as so modified, the judgment is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

 In support of their cross motion, the defendants made a prima facie showing of entitlement to summary judgment dismissing the complaint.   They submitted evidence demonstrating that in 1925 James Fitzpatrick, the owner of the land now owned by the plaintiff (cf., Berman v. Golden, 131 A.D.2d 416, 515 N.Y.S.2d 859), granted their predecessor in interest an easement over the property (see, Millbrook Hunt v. Smith, 249 A.D.2d 281, 670 N.Y.S.2d 907;  Antonopulos v. Postal Telegraph Cable Co., 261 App.Div. 564, 26 N.Y.S.2d 403).   In opposition, the plaintiff failed to raise a triable issue of fact.   Therefore, the Supreme Court properly granted the defendants' cross motion (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The plaintiff's remaining contentions are without merit.

 We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendants (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).

MEMORANDUM BY THE COURT.

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