Opinion
March 26, 1990
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
Upon review of the record we find that, contrary to claims of the defendants Jerome J. and Joanne Pines Hersh, the Supreme Court did not err in granting partial summary judgment to the plaintiff with respect to an easement granted to it in a deed issued in 1982 by the City of Peekskill (see, Pagano v Kramer, 21 N.Y.2d 910). The city had acquired title to this property through a tax lien foreclosure. A purchaser from the city takes title as though it were a purchaser from the original owner (see, RPTL 1008 [1]). The original owner's certificate of abandonment of a subdivision pursuant to Tax Law former § 32 (now RPTL 560) did not evince an intention on the original owner's part to abandon the right of ingress and egress from the property to the nearby public way. However, contrary to the plaintiff's claims on appeal, it was entitled to partial summary judgment only to that extent.
With respect to the plaintiff's claim of an implied easement appurtenant to another property, the court correctly denied partial summary judgment. The reference to the abandoned street "Dorian Court" in the plaintiff's deeds was merely descriptive of the boundaries. The language of description did not imply such an easement, since the lot in question has frontage on another existing public way. One who claims an implied easement has the burden of establishing all the facts necessary to support it (see, Tarolli v Westvale Genesee, 6 N.Y.2d 32).
Moreover, the court did not err in determining it was necessary to hold a hearing on the counterclaim of the defendants Hersh which alleged that the plaintiff had abandoned the easement over the bed of "Dorian Court" by obstructing the way with debris. Similarly, the affirmative defense of adverse possession of the bed of "Dorian Court" raised by the defendants James T. and Judith A. Louch calls for resolution of issues of fact (see, Spiegel v Ferraro, 73 N.Y.2d 622; Cruickshank v Valentine, 46 A.D.2d 824). Further, the measurements and scope of the easement must be determined by the court. Sullivan, J.P., Harwood, Balletta and Miller, JJ., concur.