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Justice Minardo http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=44401 DEFENDANT SOUGHT summary dismissal of plaintiff’s action for $5 million in damages grounded on defendant’s alleged 1998 encroachment on an easement. Referring to Real Property Actions and Proceedings Law §2001, defendant argued that plaintiff’s action was untimely because the alleged encroachment was completed more than two years prior to plaintiff’s action. Plaintiff argued that while the two-year limit in §2001 governs negative easements, the subject easement was a positive easement granting plaintiffs the right to use defendant’s servient estate. The court denied dismissal, finding that the subject easement was an affirmative easement for which an encroachment removal actiongoverned by the six-year statute of limitations in Civil Practice Law and Rules §213(1) rather than the two-year limitation period of §2001. The court found that the fact that plaintiff may still have some access to the property, although half the size of the original easement, did not affect the validity of plaintiff’s claim.

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