Mikoll, J., dissents in a memorandum. Mikoll, J. (dissenting). I respectfully dissent.
There are convincing circumstances in the record which indicate that a preliminary injunction should not be granted to plaintiffs. I concur with the majority’s conclusion that plaintiffs’ easement is exclusive. However, the photographic evidence demonstrates that despite the encroachment over the easement, plaintiffs are still able to park two vehicles within the easement area and have regularly done so for the last seven years.
I disagree that the record fails to establish prejudice to defendant due to plaintiffs’ delay in bringing the action until 1986. Defendant has demonstrated reliance on plaintiffs’ omissions. Plaintiff Dorothy M. Mylott admitted that defendant spoke to her about constructing the deck in 1979. Defendant claims that Mylott consented thereto and Mylott denies giving any such consent. Defendant testified that the deck was constructed out of concern for the depression she noticed in the area of the cesspool, which is in the easement area. Mylott and her husband have been aware of the deck since it was built in 1979 and their daughter, who gained an interest in the easement in 1984, has likewise been aware since at least that time. Further changes in the building were made in 1980. Steps and a door were added, a window removed and electrical work done. The record further discloses, by way of testimony of an experienced real estate agent, James Pepper, that the lot is about 3,000 square feet; that its dimensions are such that if the cesspool were damaged and rendered unusable, the building of a septic tank system would not be possible. Building a new cesspool is no longer permitted in the Town of Bolton. The lot is otherwise too small and too near the right of way to permit the construction of a conventional septic tank. Pepper opined that the present value of the property is $80,000 to $90,000 and that without bathing and toilet facilities, its value would diminish to nothing more than that of a cabana, picnic shelter or parking space, that is, its value would be between $10,000 and $20,000. Under these circumstances, it would be inequitable to order removal of the deck (see, Glenesk v Guidance Realty Corp., 36 AD2d 852).
In view of the fact that plaintiffs have for seven years fully *856utilized their parking easement despite the deck’s encroachment, the reliance of defendant on what she considered to be consent on Mylott’s part, defendant’s financial investment in structural changes, the danger of a dramatic diminution of the value in defendant’s property if the cesspool fails, it is my opinion that defendant is entitled to a reversal of the injunctive relief granted to plaintiffs.
Further, it is my view that plaintiffs have failed to prove any legal damages because of the partial encroachment and none should be granted.