Millbrook Hunt, Inc. v. Smith , 650 N.Y.S.2d 981 ( 1996 )

In an action, inter alia, for a judgment declaring that the plaintiffs have an easement over the defendant’s property and a permanent injunction enjoining the defendant from interfering with the plaintiff’s use of that easement, the defendant appeals from an order of the Supreme Court, Dutchess County (Hillery, J.), dated August 29, 1995, which granted the plaintiff’s motion for a preliminary injunction and enjoined him (1) from obstructing or interfering with the plaintiff’s use of his lands which are subject to the terms of a lease and easement agreement, (2) from disturbing or removing any fences or gates used by the plaintiff and located on the subject property, and (3) from excluding members of the plaintiff from maintaining trails on the subject property.

Ordered that the order is affirmed, with costs.

The defendant’s contention that the subject lease and easement agreement actually did not create an easement but a revocable license is offered for the first time on appeal, and as such, this Court declines to reach it (see, Cibro Petroleum Prods, v Chu, 67 NY2d 806, 809; Geigy v PL Apt. Corp., 228 AD2d 644).

The Supreme Court did not improvidently exercise its discretion in granting the plaintiff’s motion for a preliminary injunction (see, CPLR 6301; Aetna Ins. Co. v Capasso, 75 NY2d 860, 862; Grant Co. v Srogi, 52 NY2d 496). O’Brien, J. P., Ritter, Thompson and McGinity, JJ., concur.