This trial presented a unique set of circumstances not directly addressed by precedent. Plaintiffs Sean and Melissa Merriam ("plaintiffs"), who own the dominant estate, and the Board of Managers of the 190 Meserole Avenue Condominium commenced this action against, among others, defendants Andrzej and Agnieszka Paczek ("Paczeks"or "defendants"), and the other owners of the remaining units in 175 Diamond Street. The plaintiffs sought, inter alia, declaratory and injunctive relief related to their use of the easement as well as damages for breach of the Driveway Agreement.

The easement, which ran over a 12 foot-wide strip of land over from the street through two properties, was created by, and then allegedly rescinded by, the sponsor within the span of two years, unlike the typical easement case where the easement has existed for decades and the creator of the easement has long since passed. Apparently, prior to actually selling the property, the sponsor decided that the easements were not feasible and instructed his attorney to remove the recording of the easement, but the attorney never did. The sponsor then built fences between the properties that contained four feet wide gates and filled the backyards with grass, and believed he therefore did not effectuate the easement. However, neither the sponsor nor the real estate agent involved in the sale of the properties informed the buyers that the Offering Plans did not actually represent what they were buying. Curiously, the plaintiff dominant estate never sued the sponsor, but rather the occupant of 175 Diamond Street and its Board, who refused him access to the easement. And yet, this case depends upon the "intent" of the sponsor.

As will be set forth below, based upon the non-permanent nature of the fences built in the backyard, the failure of the sponsor to eliminate the Driveway Agreement and Offering Plans which both contained the easement, the precedent of officially filed documents over an alleged oral statement barred by the statute of frauds, and the fact that the Merriams bought the property for the value of the contained easement, the court rules for plaintiffs that the easement was never abandoned

In Board of Mgrs. of the 190 Meserole Ave. Condominium v. Board of Mgrs. of the 188 Meserole Ave. Condominium, 191 AD3d 629 (2d Dept. 2021), the Second Department previously modified a lower court order in this case which had granted plaintiffs' cross motion for summary judgment on the issue of liability and substituted a provision denying that branch of the cross motion and directing that the case proceed to trial on whether plaintiff had an easement by grant over the property owned by defendants. This opinion quotes liberally from the Second Department's statement of facts.

Non-party sponsors Ted Wozniak and Jon Kimszal originally purchased three Brooklyn lots in 2004-05, located at 175 Diamond Street, 188 Meserole Avenue, and 190 Meserole Avenue, with the purpose of building three attached condominium buildings. Prior to construction and before sale, the sponsors entered into a Driveway Agreement between themselves, which was deemed to be a covenant running with the land and binding on successors. The Driveway Agreement created an easement over a 12-foot-wide strip of land on the 175 Diamond property, the only building that had access to Diamond Street, and over the adjacent 190 and 188 Meserole properties for vehicular and pedestrian ingress and egress. Bd of Mgrs. of the 190 Meserole Ave.,191 AD3d at 630. It provides in relevant part: "the [175 Diamond property] grants to the [188 Meserole and 190 Meserole properties] a non-exclusive easement appurtenant to and for the benefit of the [188 Meserole and 190 Meserole properties] to enter upon a twelve foot wide strip of land running along the southeasterly portion of the [175 Diamond property] and to pass and repass, thereon, by foot, with vehicles or otherwise for purposes of ingress and egress to [the 188 Meserole and 190 Meserole properties]." Further, the Driveway Agreement states that "[n]either party shall obstruct, cause to be obstructed, or otherwise interfere with the [other] party's reasonable use of this easement." Finally, the Driveway Agreement states that "[t]his Agreement and all negative and affirmative covenants of the parties hereunder shall be deemed covenants running with the land." The sponsors of the three properties executed and recorded the Driveway Agreement with New York City's Office of the Register in 2006.

The Offering Plans for the three condominiums submitted by the sponsors to the New York State Attorney General's Office in 2007 are nearly identical and all reference the Driveway Agreement, stating that "[a] driveway agreement affecting the Condominium and the properties located at [all three properties] provides access to the one (1) on-site parking space in the rear of the Building reserved exclusively to the owner or tenant [of the ground floor unit of each building]." It further states that "[v]ehicular and pedestrian access to the parking space is provided by a driveway across the easterly portion of the 190 Meserole Avenue and [the 175 Diamond properties]." All three Offering Plans also include copies of the Driveway Agreement. The contract for purchase further states that "conflicts between this agreement and [the Offering Plan] should be resolved in favor of [the Offering Plan]."

Therefore, all written documents prior to the actual sale provide that a driveway connecting the 175 Diamond Street property to the street would be extended to 190 Meserole Avenue, and further to 188 Meserole Avenue, which was adjacent to the 190 Meserole Avenue property, thus allowing those latter properties access to Diamond Street as well. Only the ground floor units had access to the street through the easement going to 175 Diamond Street. However, the sponsors never extended the driveway as contemplated, and they instead created backyards [*2]with landscaping on the 190 and 188 Meserole Avenue properties, separated by fences. They made this decision while they still owned all three properties and before contracts of sale for any of the condominiums were entered into. The sponsors leveled the four-foot difference between the ground at 175 Diamond and 190 Meserole but thereafter took no steps to install a driveway. The backyards that were created contained six-foot wood fencing enclosing each property, grass, and shrubbery, including "bushes all around the perimeter in a rectangular shape," and a four-feet-wide gate between each property. There was no paving, nor any driveway, nor any parking spot.

A non-party purchased the ground floor unit at 190 Meserole Ave, and the Merriams purchased the ground floor unit of 188 Meserole. The Paczeks subsequently purchased the condominium unit on the ground floor of 175 Diamond Street and placed an electronic gate between the driveway and the street. The deed to the Paczek unit incorporates the metes and bounds description of the easement area set forth in the Driveway Agreement. After that, the Merriams requested that the Paczeks provide access to the easement area so that they could extend the driveway on 175 Diamond Street over the 190 Meserole property and onto their property. The Paczeks refused to provide access. The Merriams and plaintiff Board of Managers of the 190 Meserole Avenue Condominium subsequently commenced this action against, among others, the Paczeks, the Board of Managers of the 175 Diamond Street Condominium, and the other owners of the remaining units in 175 Diamond Street. The plaintiffs sought, inter alia, declaratory and injunctive relief related to their use of the easement as well as damages for breach of the Driveway Agreement. Surprisingly, plaintiffs did not sue the original sponsors Wozniak and Kimszal.

Following motion practice, the Kings County Supreme Court granted plaintiffs summary judgment, but the Second Department reversed and found that contrary to the Supreme Court's conclusion, the plaintiffs failed to eliminate triable issues of fact as to whether the driveway easement remained viable and had not been abandoned. The Appellate Division first determined that the declaration of condominium ownership and the Paczeks' deed expressly provided for the easement and defendants had failed to prove by clear and convincing evidence that the easement had been abandoned. However, triable issues of fact existed as to whether the easement granted by the Driveway Agreement was lost due to abandonment given Wozniak's testimony at his deposition that he had discarded the plan to construct a driveway on the 188 and 190 Meserole Avenue properties due to infeasibility, and instead, constructed yards separated by fences, and sold the ground floor units as garden apartments..

The Appellate Division also found that the 175 Diamond Street defendants had failed to establish their entitlement to dismissal of the complaint as asserted against them specifically and that the lower court had properly denied their motion for dismissal as a matter of law. Contrary to their contention that the easement merely affected property owned and controlled exclusively by the Paczeks, the condominium documents, including the declaration, demonstrated that the easement area was a "common element"—defined to include both general and limited common elements—which was subject to collective ownership, administered by the Board. The condominium documents further demonstrated that, while the easement area was a limited common element designated for exclusive use by the owner of the Paczeks' unit, the Board retained authority to enter the easement area for the purposes of inspection, repair, structural [*3]replacements, and removal of violations, among other things.

At trial, Ted Wozniak, one of the sponsors for all three buildings, testified that, after the easement was created and memorialized in writing, he began discussing construction of the contemplated parking spots with an architect. However, after discussions with the architect, he determined that it was not sensible to put parking at 188 and 190 MESEROLE because of the "the amount of paperwork and the construction on the driveway in the back would not be good for the property." "It didn't make any sense for us to do [the driveway] on [188 Meserole and 190 Meserole] from a construction point of view, from a Department of Buildings point of view, it made no sense. We didn't pursue it." He further testified it was implausible to create the 12 feet of space originally contemplated for the driveways because the owners of cars parked on 190 Meserole and 175 Diamond would have to move their cars to allow for other cars from 188 and 190 Meserole to pass through the properties and access Diamond Street. Wozniak testified that he made the ultimate decision to not install the driveway on 188 Meserole and 190 Meserole between 2006 and 2007. At this time, the sponsors were still the owners of all three properties.

Wozniak testified that he advised his attorney, Leonard Hecht, that the sponsors no longer intended to install a driveway, and he asked Hecht to amend the documents he had already filed with the City and State, including the Driveway Agreement creating the easement and Offering Plans, to reflect this decision. Wozniak stated Hecht "handled the legal aspect" of the entire process, including filing paperwork for the Offering Plans with the State Attorney General's Office. After discussions with Hecht, the sponsors proceeded to construct the buildings without regard for a driveway and parking at 188 Meserole and 190 Meserole. 175 Diamond did have a driveway and parking installed, but that driveway did not extend to the two other buildings. There are gates in the fences that allow for pedestrian passage from 188 Meserole to 190 Meserole and 190 Meserole to 175 Diamond. The gates are too small for vehicles to pass through. Plaintiff Sean Merriam testified that the gates are approximately four-foot-wide openings in the fence.

Despite Wozniak's alleged change in intention regarding the easement, nobody ever actually amended the Offering Plans for all three buildings or extinguished the easement, and all three plans contained the aforementioned references to a driveway and parking at the time of sale. Wozniak explained this discrepancy, testifying that his attorney "never went back and amended the [Offering Plans]" despite his orders to do so. Wozniak admitted that he signed the Offering Plans that still provided for a driveway and parking which were then presented to the buyers, but he claimed that he did not read it fully and assumed that his attorney had removed the driveway and parking provisions from the Offering Plans.

Non-party Lisa Vangelis, the architect who designed 175 Diamond and worked on the Offering Plans for all three buildings, testified that the sponsors instructed her to have parking and pavement on each property without landscaping or fencing, and her reports reflect as such. She further testified that there was never any communication by the sponsors or anyone representing the sponsors to her regarding modifying those instructions, and that she never told the sponsors that the effectuation of the easement by making fences large enough for the cars to [*4]pass through and placing parking on each property was infeasible.

The Merriams own the ground floor unit of 188 Meserole. Sean Merriam testified that he and his wife went to an open house at 188 Meserole in April or May of 2008. They decided that they wanted to put in an offer, so they returned to the property for another open house and spoke to the realtor, Jim Awaye, who instructed them to put a deposit down to get an Offering Plan. Sean Merriam first saw the Offering Plan after he put down a deposit on the unit. He testified that he and his wife purchased the unit with the understanding that they would have access to a driveway and recalls learning about the driveway and parking spot before he had even seen the property, but his memory is shaky regarding about when he first learned about the driveway. He did not state that he had conversations with either the realtor Awaye or the sponsor about the parking space and easement although he did discuss items that he wanted fixed in the apartment.

Merriam concedes that there was no evidence of a driveway at either the open house or at the time of closing, and that there was also no discussion of the Driveway Agreement at closing or any mention that it no longer existed. He testified that the backyard contained grass, shrubbery, and a four-foot-wide gate in the back corner fencing at the 12 foot mark and that it was a gate that a person could walk through, approximately four feet wide. However, he contended that, based on the Offering Plan and the fact that no one had discussed the lack of driveway nor its alleged abandonment to him or his wife, he believed that he could install a driveway whenever he wanted. He testified that he was concerned about the physical layout not containing a driveway, so he asked his lawyer, who assured him that since it was in the Offering Plan, he had the right to the driveway even if it was not physically present at that time.

Merriam testified that he was not upset that the driveway had not yet been constructed because he wanted to build it himself. "I didn't want [the sponsors] to build the parking spot. I wanted to make it nice, to make it the way I would have wanted." He testified that he believed he had the right to take down the fence to allow for construction of the driveway and vehicle passage. Merriam further stated that there was no shrubbery on what he believed was the designated parking space (although there was grass) and that he believed that the paved area at 175 Diamond Street would continue onto his property, allowing him to have a parking spot, driveway, and access to Diamond Street via the 175 Diamond building. Merriam testified that he did not know about an alleged abandonment of the driveway easement until the commencement of this action. He claims that, had he had known about the lack of a driveway at 188 Meserole, he would have offered about $100,000 less for the property.

When the Merriams decided that they wanted to commence construction of the driveway, they notified their neighbors at 175 Diamond Street, the Paczeks. The Paczeks had purchased the condominium unit on the ground floor of 175 Diamond Street in June 2008. They placed a gate between their driveway at 175 Diamond and Diamond Street itself to allow for vehicle passage. Plaintiff Merriam claims that the Paczeks refused to allow access to the easement through 175 Diamond.

Non-parties Robert Anderegg and Brendon Anderegg testified as witnesses. Robert is Brendon's father and helped Brendon purchase the ground floor unit at 190 Meserole, which sits between 188 Meserole (the Merriams' condominium) and 175 Diamond (the Paczeks' condominium). Both witnesses testified that they believed that they had the option to add a driveway and parking to their unit if they chose to do so and that Wozniak had told them that [*5]they had the option to add a driveway. When Sean Merriam approached Brendon about constructing the driveway, Brendon testified that he was agreeable to taking down the fences and constructing the driveway.

An easement is "an incorporeal right which is appurtenant to the ownership of the dominant estate," e.g., plaintiffs' property, and "which constitutes a charge upon the servient estate", e.g., defendant's property. Koepp v. Holland, 2013 U.S. Dist. LEXIS 204687, (N.D.NY 2010), citing Rahabi v. Morrison, 81 AD2d 434, 437-438 (2d Dept. 1981). "Although easements may be created in a variety of ways, fundamentally they are defined by the rights and obligations they create. An easement is more than a personal privilege to use another's land, it is an actual interest in that land." Sutera v. Go Jokir, Inc., 86 F.3d 298, 302 (2d Cir. 1996). An affirmative easement grants the owner of the dominant tenement - the easement holder - a right to use another person's land in a particular, though limited, way. Id. at 302. The grant carries with it those rights necessary to effectuate the easement's exercise and enjoyment. Id. The servient owner can use his land for any purpose consistent with the dominant owner's or grantee's enjoyment of the easement. Id. And the servient landowner's duty is fulfilled if he does nothing to obstruct the right of access belonging to his neighbors. Tagle v. Jakob, 97 NY2d 165, 168 (2001).

"Once created, [an] easement runs with the land and can only be extinguished by abandonment, conveyance, condemnation, or adverse possession." Djoganopoulos v. Polkes, 95 AD3d 933, 935 (2d Dept. 2012). See, Gerbig v. Zumpano, 7 NY2d 327 (1960);Carp v. Shapiro, 239 AD3d 587 (2d Dept. 2025); Rosen v. Mosby, 148 AD3d 1228, 1232 (3d Dept. 2017); Spier v. Horowitz, 16 AD3d 400, 401 (2d Dept 2005). Non-use alone, no matter how long continued, can never in and of itself extinguish an easement created by grant. Carp, supra, 239 AD3d at 588. In order to prove abandonment, it is necessary to establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement." Gerbig, supra, 7 NY2d at 331.See, . Consolidated Rail Corp. v. MASP Equip. Corp., 67 NY2d 35, 39 (1986). However, "abandonment does not result from nonuse alone, no matter how long," inasmuch as owners are not required to make use of their easement as a condition of retaining his interest therein. Id. at 39; Janoff v. Disick, 66 AD3d 963, 966 (2d Dept. 2009); Castle Associates. v. Schwartz, 63 AD2d 481, 487 (2d Dept. 1978). Instead, to prove an abandonment, the proponent must establish both an intention to abandon and also some overt act or failure to act which carries the implication that the owner neither claims nor retains any interest in the easement." Carp, supra, 239 AD3d at 589 (2d Dept. 2025). Therefore, an express grant of easement is not extinguished merely because the necessity for the easement ceases, or through mere nonuse. Id. at 588.

The acts claimed to constitute an abandonment must demonstrate "a destruction of the easement, impossibility of its legitimate use resulting from some act of the easement owner or other unequivocal conduct" revealing an intent to permanently relinquish and surrender all rights to the easement. Cascelta Co. LLC. v. AJDA, LLC, 2011 NY Slip Op 51488(U) 2011 NY Misc. LEXIS 3901, at *14 (Sup. Ct. Nass Co. 2011). The language of the grant is one method of evincing the manifestation of the conveyor's intent. Stone v. Donlon, 156 AD3d 1308, 1310 (3d [*6]Dept. 2017). The "burden to show abandonment of an easement by grant is a heavy one." Chapman v. Vondorpp, 256 AD2d 297, 298 (2d Dept. 1998) and the party asserting abandonment must prove it through clear and convincing evidence. Consolidated Rail Corp, supra, 67 NY2d at 39.

In general, construction of "obstructions" on easements are evidence of mere nonuse and nothing more, therefore making them insufficient to constitute abandonment. Will v. Gates, 254 AD2d 275, 276 (2d Dept. 1998). Any obstruction or development that is "conditioned on the existence of the easement" is not sufficient to constitute abandonment. Gale v. Town of Wilton, 200 AD3d 1168, 1170 (3d Dept. 2021). Even where a plaintiff's predecessors did not object to a fence and planted vegetation at the easement's entrance, this does not "clearly demonstrate" a permanent relinquishment of all rights to the easement, particularly where that plaintiff and their predecessors continued to use most of the easement and simply take an alternate route around the fence. Del Fuoco v. Mikalunas, 118 AD2d 980 (3d Dept. 1986).

In Koepp v. Holland, 2013 U.S. Dist. LEXIS 204687 (N.D.NY 2013) a federal district court found that a defendant erected a plastic construction fencing in June 2006, before plaintiffs closed on their property in late 2006 or early 2007. Thus, plaintiffs never had an opportunity to exercise their use of their easements or any presumed license to cross the easement after they purchased their property, as they were physically blocked from doing so. Furthermore, the court found that plaintiffs immediately requested that local officials force defendant to remove the plastic construction fencing upon learning about its placement. The court therefore found that plaintiffs did not evince an "unequivocal" intent to abandon their property and in fact did everything in their power to protect their interest in their easement which defendant "so flagrantly interfered with" by building the fence. Id. at 97.

Abandonment will be found where a plaintiff has not used the easement, has acquiesced in a defendant's construction of obstructions on the easement, and where a plaintiff has also affirmatively built obstructions over the easement over a long period of time. "Abandonment of an easement will be presumed where the owner of the right performs, or acquiesces in the performance of, acts inconsistent with its future enjoyments The erection and maintenance by or with the acquiescence of the dominant owner of something which is incompatible with the exercise of the easement is evidence of abandonment." Thyhsen v. Brodsky, 51 Misc 2d 1023, 1031 (Sup Ct. Monroe County, 1966); see also, Quesnel Family Trust v. Harstedt, 285 AD2d 705, 706 (3d Dept. 2001) ("[A]lthough none of the facts in this case—use of alternate access, lengthy nonuser, and large trees and a fence encroaching on the easement for decades—may be sufficient alone to demonstrate abandonment, together they are sufficient" to permit, but not require, a finding of abandonment.).

In Boerum Johnson LLC v. Marte, 2020 NY Slip OP 33700(U), 2020 NY Misc. LEXIS 9655 (Sup. Ct. Kings Co. 2020) the court declared that the defendants, owner of the servient estate, had abandoned their driveway easement which had provided them access over plaintiff's property. Plaintiff and its predecessor had permanently blocked off the easement by erecting a metal fence placed on a 1.5 foot high one-foot-wide concrete wall. Defendants had also affirmatively abandoned the easement by removing the ten-foot-wide door on their property that [*7]had provided a driveway to the rear of their property and installing a brick wall on the side of the building. Defendants also conceded to adding a narrow fire and roll gate on their property which left no access or space for autos to enter. The court found defendants actions made use of the 1949 Driveway Easement impossible and evidenced defendants' unequivocal and clear intent to abandon the easement.

Again, in all cases where abandonment has been found, the plaintiffs have not used the easement over a long period of time, have acquiesced in the defendant's construction of permanent obstructions on the easement or have affirmatively built the permanent obstructions which have made the easement unusable.

The Second Department has deemed a right-of-way obstructed by a six-to-eight-foot-high concrete retaining wall to be insufficient to constitute abandonment and ordered the removal of the wall so that the easement could be used. De Jong v. Abphill Associates, 121 AD2d 678 (2d Dept. 1986). There, plaintiff's predecessor granted an easement for the passage of motor vehicles over a 20 foot strip running over his property and connecting that property with the street which touched defendant's property at the northeast corner. The instrument granting the easement was recorded in a deed in the county clerk's office, but the granted easement was never opened along its entire length for vehicular traffic. Some five years after the granting of the easement, the defendant constructed an apartment complex and obstructed the right of way by a six-to-eight-foot concrete retaining wall built on the border between the two parcels of land. Plaintiff then commenced an action to compel the defendant to remove the obstruction to the right of way. The Second Department found that the evidence of non-use coupled with the failure to act by plaintiff and his predecessors did not constitute abandonment as there was no unequivocal evidence acts of intent to abandon. The construction of obstructions on the easement was merely "evidence of non-user and nothing more." Id. at 679-80.

Similarly, Butts v Moreno, 2009 NY Slip OP 51674(U), 2009 NY Misc LEXIS 2020 (Sup. Ct. Kings Co. 2009), involved a paradigm strikingly similar to the instant matter. Plaintiff sought to enforce a reciprocal easement on a strip of property between his and defendant's home. The declaration of easement common to the deeds of both properties provided that each of the rights of way shall be used by pedestrians and as a common driveways and also set forth that the rights of way shall be maintained and kept open and unobstructed by the respective owners of the lots of land. The grantor further declared that the easements shall be used by pedestrians and as a driveway for the purpose of ingress and egress of cars from East 54th Street to the garages or parking areas erected or that "may be erected" upon the rear of said premises. Defendants thereupon constructed a fence, a step and a gate which encroached upon the easement and prevented plaintiff from driving his car on the common driveway and accessing his rear property.

Defendant asserted that plaintiff had abandoned the easement because when he purchased the property the backyard was fenced in, but he acknowledged that plaintiff had retained the fencing with the intention of removing it when they needed to use the backyard to park a car and had built a garage to that effect. Defendant also asserted that plaintiff had used the easement for pedestrian use three to four times a week. The court found that it was undisputed that the gate and fence erected by defendant at the rear of his property made it impossible for a passenger vehicle to access the rear of plaintiff's property. It also found that the fact that a fence on plaintiff's property predated plaintiff's purchase of the property thirty years ago did not raise a [*8]finding of abandonment, and that neither the fencing nor the garage that plaintiffs had constructed at the front part of the property obstructed the driveway.

It is clear that the instant matter falls squarely within precedent finding no abandonment. There simply was no destruction of the easement, impossibility of its legitimate use resulting from some act of the easement owner or other unequivocal conduct revealing an intent to permanently relinquish and surrender all rights to the easement. See, Consolidated Rail Corp., supra, 67 NY2d at 39-40. Nor have defendants shown by clear and convincing evidence that the easement was abandoned because the sponsor told his attorney that the easement was no longer feasible and that he thereafter built fences between the properties that were only about four feet wide and filled the back yards with grass. Rather, the evidence is clear that both plaintiffs and non-parties Robert and Brendon Anderegg purchased the property with full knowledge of the easement included in the Offering Plan and plaintiffs were not fazed by the fact that their backyard was gated with shrubbery or that there was a four foot rather than a 12 foot opening between their property the Andereggs' property. Rather they wanted to build a parking spot to their own taste when the time was right.

As opposed to cases where abandonment was found, which involved at least ten years or more of non-use and construction of permanent structures, here everything happened within two years. The sponsors of the three properties executed and recorded the Driveway Agreement with the Office of the Register in 2006 and referenced the driveway easements in the Offering Plans for the three condominiums submitted by the sponsors to the New York State Attorney General's Office in 2007. All three residents of the three properties at issue purchased their condos in 2007 and 2008pursuant to Offering Plans which clearly retained the Driveway Agreement. After a year of living at 188 Messerole, plaintiffs decided they wanted to use the driveway easement and were prohibited from doing so by defendants the Paczeks. The wooden gates with a four-foot opening do not constitute a permanent structure which would absolutely bar the use of the easement and which can easily be taken down or widened. Nor does the fact that an actual parking spot was not constructed within the twelve-foot easement constitute a permanent impediment, as plaintiffs can simply pave it over. Put simply, there was no act by plaintiff or the sponsors which revealed by clear and convincing evidence that there was an intent to abandon the easement and plaintiff's "non-use" of the easement for a year after he bought the property is not indicative of abandonment.

Rather it was defendants' action in creating a electronic parking gate from Diamond Street onto their property, which they controlled, and parking their car on the easement right of way which made the easement unusable. Yet the case law is clear that abandonment will only occur when the plaintiffs have acquiesced in the defendants' construction of obstructions on the easement or where the plaintiffs have also affirmatively built obstructions over the easement over a long period of time. Defendants have failed to prove by clear and convincing evidence that the Merriam acquiesced in the Paczeks building of electronic fence or placing their car on a portion of the easement which made it impossible for the Merriams to access the street with their car or vice versa. Simply put, the Paczeks had no right to transfigure their property and build an electronic fence to preclude plaintiffs from using their easement.

Finally, the Offering Plans filed with the State Attorney General's Office and the Driveway Agreement filed with the Office of the Register in 2006 supersede and trump any [*9]alleged "thought" or oral discussion between the sponsors and his attorney. An easement can be enforceable by either a recorded written instrument, or because of the visible and obvious nature of the easement. Clover/Allen's Cr. Neighborhood Assn., LLC v. M&F, LLC, 79 Misc 3d 318, 323 (Sup Ct. Monroe Cty. 2023). See also, McLean v. Ryan, 157 AD2d 928, 929-30) (3rd Dept. 1990) ("The record contains no evidence of changes in the water system's configuration that may have taken place after the land was purchased by the Gerhardt's and prior to plaintiffs' purchase. Although the system as it existed at the time of plaintiffs' purchase was modified by an oral agreement in 1977 resulting in the attachment of a line leading from the "T" to defendant's residence, such agreement violates the Statute of Frauds (General Obligations Law § 5-703 [2]) and cannot affect plaintiffs' legal rights under the deed to the water system that existed at the time the property was conveyed to them. Defendant's deed specifically makes her interest in the system subject to this right.").

As there was no abandonment, plaintiffs have the right to utilize the driveway easement and may at their own expense reconfigure their backyard to create a parking spot and enlarge the gate between their property and 190 Meserole to ensure that their car can pass through the gate. Defendants must reconfigure the fence between their property and 190 Messerole to ensure that there is a 12 foot opening through which plaintiffs can drive their car and must grant plaintiffs' car access through the entrance on Diamond Street through the easement on their property.

This constitutes the decision and order of this Court.