
    Oneida County Mobile Home Sales, Inc., et al., Respondents, v Niagara Mohawk Power Corporation, Appellant, and John J. Auer et al., Respondents.
    Argued May 31, 1979;
    decided July 3, 1979
    
      APPEARANCES OF COUNSEL
    
      Evalyn G. Basloe for appellant.
    
      Stewart D. Pratt for plaintiffs-respondents.
    
      Stephen L. Walthall for defendants-respondents.
    
      
      Ruth B. Rosenberg, Paula M. Connelly and Gregory C. Staple for Rochester Telephone Corporation and another, amici curiae.
    
    
      Alfred E. Froh and Lawrence W. Thomas for Orange and Rockland Utilities, Inc., amicus curiae.
    
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs against plaintiffs to defendants Auer only, by reversing that portion of the order which affirmed the grant of summary judgment dismissing the counterclaim of Niagara Mohawk Power Corp. against plaintiffs and remitting the action to Supreme Court, Oneida County, for further proceedings in accordance with this memorandum. Since there is no appeal by plaintiffs to this court, we may not consider their request for affirmative relief.

While we express no opinion on the question of whether the placement of mobile homes under Niagara Mohawk’s power lines would constitute interference with its easements or whether Niagara Mohawk is entitled to recover ón its counterclaim, we agree with the Appellate Division that the counterclaim seeks damages for interference with a negative easement by implication (63 AD2d 385, 390-392; see Trustees of Columbia Coll. v Lynch, 70 NY 440, 447-448). Subdivision 1 of section 2001 of the Real Property Actions and Proceedings Law provides that its terms apply "to actions to enforce a covenant or agreement restricting the use of land or to recover damages for breach thereof, including an action predicated on infringement of an easement or other interest created by the covenant or agreement, to the extent that the restriction relates to structures that may be erected” (emphasis added).

Accordingly, the counterclaim is subject to the two-year period of limitation of subdivision 2 of section 2001 of the Real Property Actions and Proceedings Law. An issue of fact, however, remains with respect to the time the mobile homes were placed under the power lines. This issue may not be resolved in the context of a motion for summary judgment solely by reference to the conclusory attorneys’ affidavits which appear in this record.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs against plaintiffs to defendants Auer only, and the case remitted to Supreme Court, Oneida County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.  