Cohan v. Fleuroma, Inc. , 346 N.Y.S.2d 157 ( 1973 )

In an action for injunctive relief and to recover damages for trespass, plaintiffs appeal from a judgment of the Supreme Court, Queens County, dated April 28, 1972 and made after a nonjury trial, which dismissed their complaint and declared, upon defendants’ counterclaim, inter alla, that “defendants have permanent easements of light, air and access” upon and over plaintiffs’ property. Judgment modified, on the law and the facts, by deleting from the first decretal paragraph thereof the words "light, air and”. As so modified, judgment affirmed, without costs. There is no evidence of any express grant of an easement of light and air to defendants or their predecessors in title; and defendants do not claim otherwise. Since easements of light and air cannot be acquired by prescription in this State (cf. Parker v. Foote, 19 Wend. 309; 2 Warren’s Weed, New York Real Property, Basements, § 22.01), it was error to declare that defendants had such easements. In our opinion, the trial court properly declared that defendants have a permanent easement of access upon and over plaintiffs’ property and the right to use it for all lawful street purposes. Hopkins, Acting P. J., Munder, Martuscello, Shapiro and Brennan, JJ., concur.