Opinion
November 7, 1988
Appeal from the Supreme Court, Nassau County (Burke, J.).
Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the defendants' motion is granted to the extent that the complaint is dismissed with leave to the plaintiff to serve an amended complaint within 60 days after service upon him of a copy of this decision and order with notice of entry.
We conclude that to the extent that the defendants sought dismissal pursuant to CPLR 3211 (a) (1) of the plaintiff's cause of action for a declaration of an express easement in favor of the plaintiff over the defendants' property, the motion should have been granted. The defendants' documentary evidence adequately established that an express easement did not exist. We agree, however, that the facts of this case indicate that the plaintiff may be entitled to an implied easement (49 N.Y. Jur 2d, Easements, § 14). Accordingly, leave is granted to the plaintiff to serve an amended complaint asserting a cause of action for an implied easement. Mollen, P.J., Brown, Rubin and Kooper, JJ., concur.