April 1, 1996
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order and judgment is modified, as a matter of discretion, by deleting the provision thereof awarding attorneys' fees to the defendants; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the defendants.
"It is fundamental that where the title in fee to both the dominant and servient tenements become vested in one person, an easement is extinguished [by merger]" ( Castle Assocs. v Schwartz, 63 A.D.2d 481, 486; see also, Riccio v. De Marco, 188 A.D.2d 847). In such a circumstance, the easement or covenant terminates because the party in whom the interests coincide may freely utilize the servient tenement as its owner. Therefore, the easement or restriction no longer serves any function ( see, Stilbell Realty Corp. v. Cullen, 43 A.D.2d 966, 967).
Here, since the defendants own both the servient and dominant estates, the right-of-way was extinguished by merger. Therefore, the defendants' cross motion for summary judgment dismissing the complaint was properly granted ( see, Zuckerman v. City of New York, 49 N.Y.2d 557). In any event, upon a review of the record, we find that the plaintiffs never had an easement over the right-of-way at issue.
The Supreme Court improvidently exercised its discretion in awarding attorneys' fees to the defendants ( see, 22 NYCRR 130-1.1) . Copertino, J.P., Pizzuto, Friedmann and McGinity, JJ., concur.