Scott Mollen, Partner at Herrick, Feinstein LLP Scott Mollen, Partner at Herrick, Feinstein LLP

Easements—Court Held Neighbor Is Not Responsible for Ensuring That a Right of Way Is Not Being Used for an Improper or Illegal Purpose By a Third Party—Right of Way Was Not On Defendant's Property—The Obligation to Contribute to the Cost of Repair and Maintenance of a Right of Way Which Exists on Another's Property Does Not Create Obligation To Ensure That Right of Way Is Not Misused

Plaintiffs had commenced an action seeking to recover damages arising from the alleged "illegal operation of a business on property adjacent to their home." The plaintiffs alleged that a defendant tenant (tenant) was conducting a commercial business at both 16 and 18 Underhill Road. The plaintiffs' property was allegedly adjacent to 16 and 18 Underhill Road, Glen Cove, New York. Those properties are located in a residential zoning district which prohibits the operation of a commercial business in a residential zone.

The tenant's "business involved the transportation of large trees and landscaping/construction refuse to and from the property for purposes of dumping and converting it to firewood and wood chips, the operation of heavy duty commercial equipment and machines and the operation of large commercial vehicles on and through 16 and 18 Underhill Road." The plaintiffs alleged that essentially, such business was operated all day, all night and weekends and that it created a nuisance and caused a diminution in the value of the plaintiffs' property.

The defendant owner of 18 Underhill (movant) moved for summary judgment dismissing the complaint. The movant submitted evidence that established that neither he nor his wife ever operated the commercial business, they had no commercial relationship with their neighbors at 16 Underhill Road, they did not permit those neighbors and have never permitted them to use their property, 18 Underhill Road is not adjacent to the plaintiffs' residence since the properties are approximately 700 feet apart, as demonstrated by a tax map, and that the tenant never resided at 18 Underhill Road.