Opinion
March 10, 1986
Appeal from the Supreme Court, Orange County (Burchell, J.).
Judgment modified, on the law, by adding a provision thereto declaring that the plaintiff has no easement over the common driveway referred to in his complaint (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). As so modified, judgment affirmed, with costs to the defendant.
As a matter of law, the plaintiff failed to show by clear and convincing evidence (see, e.g., Bergner v. Kick, 85 A.D.2d 911, affd 56 N.Y.2d 795; Buck v. Allied Chem. Corp., 77 A.D.2d 782; Zentner v. Fiorentino, 52 A.D.2d 1036) that prior to subdivision and sale to the plaintiff Michael Bigg, Jr., and to the defendant Webb Properties, Inc., the prior owner of the properties in question created a use by which one part of the tract was subordinated to the other or that a reciprocal subordination was created. Specifically, the plaintiff failed to show that, prior to the subdivision of the properties in question, a driveway existed over the border between the two properties. Furthermore, the existence of the alleged easement was not plainly and physically apparent upon reasonable examination, nor was it necessary to the reasonable use and enjoyment of the property. Accordingly, the plaintiff failed to show the existence of an easement by implication (see, e.g., Abbott v. Herring, 97 A.D.2d 870, affd 62 N.Y.2d 1028; Jacobson v. Luzon Lbr. Co., 192 Misc. 183, affd 276 App. Div. 787, affd 300 N.Y. 697; Heyman v. Biggs, 223 N.Y. 118, 125; Willow Tex v. Dimacopoulos, 120 Misc.2d 8, 11, mod on other grounds 109 A.D.2d 740). Since the plaintiff failed to present sufficient evidentiary proof in admissible form to show the existence of a triable issue of fact, the granting of the defendant's cross motion for summary judgment dismissing the plaintiff's complaint was appropriate (see, e.g., Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067; Shaw v. Time-Life Records, 38 N.Y.2d 201, 207). Mollen, P.J., Lazer, Kunzeman and Kooper, JJ., concur.