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Welsh v. Okolie

Appellate Division of the Supreme Court of New York, Second Department
Oct 11, 2005
22 A.D.3d 572 (N.Y. App. Div. 2005)

Opinion

2004-05193.

October 11, 2005.

In an action, inter alia, for a judgment declaring that the plaintiffs have an easement over a parcel of property owned by the defendants Cyril Okolie and Phyllis Okolie, the defendants Cyril Okolie and Phyllis Okolie appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Suffolk County (Oliver, J.), dated May 17, 2004, which, among other things, denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Cyril Okolie and Phyllis Okolie, Corona, N.Y., appellants pro se.

Goldstein, Rubinton, Goldstein DiFazio, P.C., Huntington, N.Y. (Arthur Goldstein of counsel), for respondents.

Before: Cozier, J.P., Krausman, Goldstein and Lunn, JJ., concur.


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

The plaintiffs' current claims are not barred by the doctrines of res judicata or collateral estoppel, as they could not have been raised in a prior proceeding pursuant to CPLR article 78 challenging the granting of area variances to the appellants ( see Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343). In addition, triable issues of fact exist, inter alia, as to whether the plaintiffs have an implied easement by grant over the appellants' property. "[W]hen property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant" ( Bogan v Town of Mt. Pleasant, 278 AD2d 264, 264-265; see Sullivan v. Markowitz, 239 AD2d 404; Fischer v. Liebman, 137 AD2d 485, 487). The Supreme Court therefore properly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.

The appellants' remaining contentions are without merit.


Summaries of

Welsh v. Okolie

Appellate Division of the Supreme Court of New York, Second Department
Oct 11, 2005
22 A.D.3d 572 (N.Y. App. Div. 2005)
Case details for

Welsh v. Okolie

Case Details

Full title:FRANCES WELSH et al., Respondents, v. CYRIL OKOLIE et al., Appellants, et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 11, 2005

Citations

22 A.D.3d 572 (N.Y. App. Div. 2005)
2005 N.Y. Slip Op. 7526
801 N.Y.S.2d 744

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