Opinion
August 25, 1997
Appeal from the Supreme Court, Richmond County (Mastro, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof directing that a judgment be entered dismissing the complaint, and adding a provision thereto declaring that the plaintiff has no easement over the subject property; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants, and the matter is remitted to the Supreme Court, Richmond County, for the entry of a judgment declaring that the plaintiff has no easement over the property.
The Supreme Court properly concluded that the plaintiff's use of a driveway located on the defendants' property was permissive, since that use was specifically authorized by a prior-executed, written agreement (see, Pickett v. Whipple, 216 A.D.2d 833, 834; 2 N Y Jur 2d, Adverse Possession and Prescription, § 12, at 320). Contrary to the plaintiff's contentions, the record fails to establish that her use of the driveway was ever transformed from a permissive to an adverse use, or that she is entitled to an easement by implication or necessity (see, Four S Realty Co. v Dynko, 210 A.D.2d 622, 623; Turner v. Baisley, 197 A.D.2d 681, 682; Monte v. DiMarco, 192 A.D.2d 1111).
However, since the complaint sought a declaratory judgment, the Supreme Court should have directed entry of a declaration in favor of the defendants (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
The plaintiff's remaining contentions are without merit.
Copertino, J.P., Thompson, Friedmann and Florio, JJ., concur.