U-Eat-More Donut Corp. v. Tedel Estates, Inc. , 655 N.Y.S.2d 421 ( 1997 )

In an action, inter alia, for a judgment declaring the invalidity of an easement, the defendant Marshel Management Corp. appeals from (1) a decision of the Supreme Court, Kings County (Kramer, J.), dated April 4, 1995, (2) an order of the same court dated April 12, 1995, which granted the plaintiff’s motion to vacate so much of an earlier order of the same court dated January 31, 1994, as declared the easement to be valid and thereupon granted summary judgment to the plaintiff declaring the easement to be invalid, and further granted the plaintiff leave to remove the appellant’s structure therefrom, and (3) an order of the same court dated September 12, 1995, which, upon renewal and reargument, in effect, adhered to the order dated April 12, 1995.

Ordered that the appeal from the decision dated April 4, 1995, is dismissed, without costs or disbursements, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509, 509-510); and it is further,

Ordered that the appeal from the order dated April 12, 1995, is dismissed, without costs or disbursements, as that order was superseded by the order dated September 12, 1995, made upon renewal and reargument; and it is further,

Ordered that the order dated September 12, 1995, is modified by deleting the provision thereof which adhered to so much of the order dated April 12, 1995, as granted those branches of the plaintiff’s motion which were for summary judgment declaring that the easement was invalid and for leave to remove the appellant’s structure therefrom, and substituting therefor a provision denying those branches of the motion; as so modified, the order dated September 12, 1995, is affirmed and the order dated April 12, 1995, is modified accordingly; and it is further,

Ordered that the appellant is awarded one bill of costs.

Issues of fact, including whether there was an abandonment of the easement by the appellant Marshel Management Corp. preclude the granting of summary judgment to either side in this case (People v Byrneses-On-Hudson, 226 AD2d 353; see also, Strnad v Brudnicki, 200 AD2d 735, 736; Gerbig v Zumpano, 7 NY2d 327, 331). Sullivan, J. P., Krausman, Florio and McGinity, JJ., concur.