Opinion
August 11, 1986
Appeal from the Supreme Court, Suffolk County (Sherman, J.).
Order and judgment modified, on the law, by adding thereto a provision declaring that the defendants John Zlatniski, Irene Zlatniski, Howard T. Tuthill and Elizabeth L. Tuthill have no right, title or interest in the real property of the plaintiffs described in the fourth paragraph of the verified complaint. As so modified, order and judgment affirmed, with costs payable by the defendants.
The defendants have failed to raise a triable issue of fact with respect to their alleged entitlement to an implied easement over a portion of the plaintiffs' property. Indeed, the papers submitted by the defendants on the plaintiffs' motion for summary judgment contained no factual support for their claim that during the unitary ownership of the various parcels of real property, a right-of-way was established over the lot presently owned by the plaintiffs and that the right-of-way was physically obvious and apparent upon reasonable inspection prior to the separation of title (see generally, Abbott v Herring, 97 A.D.2d 870, affd 62 N.Y.2d 1028; Buck v Allied Chem. Corp., 77 A.D.2d 782; McQuinn v Tantalo, 41 A.D.2d 575, lv denied 32 N.Y.2d 610). Moreover, the defendants failed to demonstrate the existence of an issue of fact with regard to their unsubstantiated allegation that the purported right-of-way was necessary to the reasonable use and enjoyment of their respective parcels of real property (see generally, Bigg v Webb Props., 118 A.D.2d 613). Indeed, they admitted that their respective lots border upon a public thoroughfare. Hence, the defendants' use of the subject property as a means of ingress and egress to their own parcels is a mere convenience, and, as such, is insufficient, as a matter of law, to establish the element of reasonable necessity in order to require an implied easement over the subject property (see, Hedden v Bohling, 112 A.D.2d 23; Buck v Allied Chem. Corp., supra). Special Term therefore properly granted summary judgment in favor of the plaintiffs (see, Zuckerman v City of New York, 49 N.Y.2d 557).
Insofar as the defendants presently seek to challenge a prior order of the same court (Doyle, J.), entered July 18, 1983, which dismissed their claim of an easement by prescription on the merits, the use of the subject property by the defendants was permitted by its former owners as a matter of neighborly accommodation, and such permissive use negated the establishment of a prescriptive right as a matter of law (see, Susquehanna Realty Corp. v Barth, 108 A.D.2d 909; Abbott v Herring, supra; Hassinger v Kline, 91 A.D.2d 988).
The equitable estoppel argument presently raised by the defendants was never raised at Special Term. Hence, the defendants have waived the opportunity to have that issue considered at the appellate level (see, Rentways, Inc. v O'Neill Milk Cream Co., 308 N.Y. 342; Orellano v Samples Tire Equip. Supply Corp., 110 A.D.2d 757; Keen v Investors Data Technology, 87 A.D.2d 811).
We have considered the defendants' remaining contentions and find them to be without merit. Lazer, J.P., Bracken, Weinstein and Eiber, JJ., concur.