Opinion
June 11, 1962
In an action for a declaratory judgment and to enjoin interference with the easement right of an owner of adjoining property to use a common driveway as a means of automobile access to and from a rear garage to a public highway, plaintiffs appeal from so much of a judgment of the Supreme Court, Kings County, entered March 17, 1961 upon the oral decision of the court, after a nonjury trial, as dismissed the complaint on the merits. Judgment modified on the law and the facts by adding a paragraph providing that the dismissal of the complaint is without prejudice to the commencement of any new action in the future, if so advised, on the basis of actual future experience showing ingress or egress to be substantially impeded or rendered hazardous by reason of the funneling or movement of tenants, their children and guests and paraphernalia along the driveway, or any portion thereof, through the gate to or from the playground and swimming pool areas. As so modified, judgment, insofar as appealed from, affirmed, without costs. Findings of fact which may be inconsistent herewith are reversed, and new findings are made as indicated herein. At the time of trial the apartment house on defendants' land was still in the process of construction. In view of its then incomplete construction and in view of the concessions upon the trial made by defendants evincing their willingness to adopt all measures necessary to discourage and prevent the use of the gate in question, the proof was insufficient to warrant an injunction now to restrain interference with plaintiffs' access and use of the easement. However, at any time after the completion of construction and the use of the apartment house and its facilities by tenants and their guests, a determination, if necessary, can then be made on the basis of an existing state of facts as to whether there is any substantial interference with plaintiffs' enjoyment of their easement. Beldock, P.J., Ughetta, Kleinfeld, Christ and Hill, JJ., concur.