Barbara H. Russell v Kimberly M. Perrone

Russell v Perrone 2003 NY Slip Op 18373 [1 AD3d 789] November 17, 2003 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

Barbara H. Russell, Appellant,
v
Kimberly M. Perrone, Respondent.

—Motion for clarification. Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ordered that the motion is granted, without costs, to the extent that the memorandum and order dated and entered January 16, 2003(301 AD2d 835) is amended as follows: the last sentence of the decision, which begins "Accordingly, Supreme Court erred . . .," is omitted and the following substituted in its place: "Accordingly, Supreme Court erred in partially denying plaintiff's cross motion and it is determined that the express right-of-way in the 1956 deed was not extinguished. While plaintiff additionally sought, inter alia, injunctive relief in the complaint, the record is insufficient to rule on the remainder of her claims, including that part of her cross motion seeking dismissal of defendant's second counterclaim."

The decretal paragraph of this Court's memorandum and order is amended to read as follows: "Ordered that the order is modified, on the law, with costs to plaintiff, by reversing so much thereof as granted defendant's motion and denied plaintiff's cross motion; motion denied, cross motion partially granted to the extent of dismissing defendant's first counterclaim and determining that the express easement granted in the 1956 deed was not extinguished; and, as so modified, affirmed."

Cardona, P.J., Mercure, Peters, Rose and Kane, JJ., concur.