From Casetext: Smarter Legal Research

Wallkill Farms Homeowners Ass'n v. Velazquez

Appellate Division of the Supreme Court of New York, Second Department
Jun 20, 1994
205 A.D.2d 681 (N.Y. App. Div. 1994)

Opinion

June 20, 1994

Appeal from the Supreme Court, Orange County (Miller, J.).


Ordered that the judgment is affirmed, with costs.

The plaintiff was a homeowner's association empowered to enforce the covenants and restrictions of a condominium complex. In 1973, a subdivision plan of the condominium complex was filed with the County Clerk. This plan depicted a 25-foot-wide "access easement" on the common boundary line between lots numbered 13 and 14. This access easement was never developed or used. The easement was apparently obstructed sometime in the early 1980's, and in 1989 the plaintiff demanded that the appellants remove the obstructions. This demand was refused.

Nonuse does not create abandonment, no matter how long the nonuse continues (see, Welsh v. Taylor, 134 N.Y. 450, 457; Conabeer v. New York Cent. Hudson Riv. R.R. Co., 156 N.Y. 474, 484). The acts demonstrating an intention to abandon must be unequivocal and must clearly demonstrate the permanent relinquishment of all right to the easement (see, Gerbig v Zumpano, 7 N.Y.2d 327, 330). The defendants failed to adduce any evidence demonstrating that the plaintiff intended to abandon the access easement. The construction of obstructions on the easement by the appellants was merely evidence of nonuse and does not constitute abandonment (see, De Jong v. Abphill Assocs., 121 A.D.2d 678, 680). Thus, the Supreme Court properly concluded that the plaintiff possessed an access easement.

We have examined the appellants' remaining contentions and find them to be without merit. O'Brien, J.P., Pizzuto, Joy and Krausman, JJ., concur.


Summaries of

Wallkill Farms Homeowners Ass'n v. Velazquez

Appellate Division of the Supreme Court of New York, Second Department
Jun 20, 1994
205 A.D.2d 681 (N.Y. App. Div. 1994)
Case details for

Wallkill Farms Homeowners Ass'n v. Velazquez

Case Details

Full title:WALLKILL FARMS HOMEOWNERS ASSOCIATION, INC., Respondent, v. JOHN VELAZQUEZ…

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

Date published: Jun 20, 1994

Citations

205 A.D.2d 681 (N.Y. App. Div. 1994)
613 N.Y.S.2d 641

Citing Cases

Zhang v. Coritsidis

In order to prove abandonment it is necessary to establish both an intention to abandon and also some overt…

Mueller v. Bohannon

Moreover, modern authority is in agreement. Nonuser is relevant evidence of abandonment, but must be combined…