
    John O'Donnell, Respondent, v Edward E. Cullen et al., Appellants.
    [644 NYS2d 899]
   —In an action, inter alia, for a judgment declaring the rights of the parties with respect to a certain right-of-way located on the plaintiff’s property, the defendants appeal from a judgment of the Supreme Court, Dutchess County (Hillery, J.), dated April 4, 1995, which, inter alia, declared that they have no right to use the right-of-way over the plaintiff’s property.

Ordered that the judgment is affirmed, without costs or disbursements.

In October of 1989, the parties’ predecessors in title obtained approval from the Town of East Fishkill for a two-lot subdivision of their property, located on Frances Drive and Route 82 in Hopewell Junction, East Fishkill. The filed map approving the subdivision contained a note directing that an existing driveway traversing Lot 1 to Lot 2 onto Route 82 be terminated and that each of the two lots construct new driveways onto Frances Drive. At the time the defendants acquired Lot 2 in December of 1993, they were granted an easement consisting of a driveway right-of-way from Route 82 over Lot 1 to Lot 2. In May of 1994, the plaintiff acquired Lot 1. The existing driveway traversing Lot 1 to Route 82 was never terminated in accordance with the subdivision approval. The plaintiff moved, inter alia, for summary judgment declaring that the defendants have no right to use the right-of-way traversing Lot 1.

The court properly granted summary judgment since the plaintiff proffered sufficient evidence to establish his entitlement to judgment as a matter of law and the defendants failed to produce evidentiary proof in admissible form establishing the existence of material questions of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320; CPLR 3212 [b]). Thompson, J. P., Altman, Goldstein and McGinity, JJ., concur.  