Maksymchak v. Pasquarille (35 A.D.2d 577, 1970)

No opinion. Rabin, Acting P. J., Latham and Brennan, JJ., concur; Hopkins, J., dissents in part and votes to modify the judgment so as to require defendants to remove the gate. Martuseello, J., dissents and votes to reverse the judgment and to grant-plaintiffs injunctive relief, with the following memorandum: I would reverse the judgment and grant plaintiffs injunctive relief compelling defendants to remove two fences and a gate which have been placed along and across a right-of-way used as a common driveway by the parties herein. The subject property is burdened by an easement, the declaration of which provides for an “ open and unobstructed ” right-of-way. In my opinion, the erection of the fences and gate constitutes an obstruction and is violative of the declaration of easement (Missionary Soc. of Salesian Cong. v. Evrotas, 256 N. Y. 86).