
    Barbara Schoolman, Respondent, v Ralph Mannone et al., Appellants.
    [640 NYS2d 616]
   In an action, inter alia, to recover damages for property damage, the defendants appeal from an order of the Supreme Court, Suffolk County (Henry, J.), dated January 20, 1995, which granted the plaintiff’s motion for partial summary judgment on the issue of liability on the first, third, and fourth causes of action, and denied their cross motion to compel discovery.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion is denied, and the defendants’ cross motion is granted.

The plaintiff commenced this action alleging that the defendants, who had an easement over the plaintiff’s property, removed certain railroad ties from the property in violation of the easement. In opposition to the plaintiff’s motion for partial summary judgment, the defendant Ralph Mannone submitted an affidavit conceding that he had removed the railroad ties in question and replaced them with blocks, but did so because the railroad ties had deteriorated due to weather and usage, and had created an unacceptable condition for use of the easement. In addition, Mannone stated that he had replaced the railroad ties in question several times in the past apparently without complaint from the plaintiff.

The defendants, having a right of passage over the easement, had a right to maintain it in a reasonable condition for such use (see, Missionary Socy. of Salesian Congregation v Evrotas, 256 NY 86; Bilello v Pacella, 223 AD2d 522). Mannone’s affidavit raises issues of fact as to whether the defendants violated their right to maintain the easement in a reasonable condition. Summary judgment was thus improperly granted, and the defendants should be allowed to proceed with discovery. Miller, J. P., Joy, Hart and Krausman, JJ., concur.  