Mancini v. Bard , 51 A.D.2d 1003 ( 1976 )

In an action for a declaratory judgment, defendants appeal from a judgment of the Supreme Court, Westchester County, dated October 28, 1975, which, inter alia, declared that plaintiffs have a right of ingress to and egress from Lots 16B-2 and 16C-1 over Palmer Lane West. Judgment reversed, on the law, with costs, and case remanded to Special Term for entry of an appropriate judgment in accordance herewith. The findings of fact are affirmed. While Special Term properly determined that plaintiffs have an interest in Palmer Lane West, it is a limited interest; Special Term’s conclusion that they have the right to use Palmer Lane West as a means of access to and from Lots 16B-2 and 16C-1 was erroneous. Plaintiffs seek to add to the area serviced by this road parcels which were never part of the Gulesian tract from which the properties of the parties to this action were formed. Since the relief sought is essentially that of creating an easement in property held in common with the other successors in interest of Gulesian, the relief sought should have been denied (see Palmer v Palmer, 150 NY 139, 149; Crippen v Morss, 49 NY 63). Gulotta, P. J., Martuscello, Latham, Margett and Shapiro, JJ., concur.