Ordered that the order is modified, on the law, by adding a provision thereto that, upon searching the record pursuant to CPLR 3212 (b), summary judgment is awarded to the defendant Nature Conservancy, Inc. against the plaintiff, and, as so modified, the order is affirmed, with costs to the defendants, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate judgment declaring that the defendant Nature Conservancy, Inc. possesses a right-of-way over the subject road pursuant to a deed from the plaintiff to it.
In Daliendo v Johnson (147 A.D.2d 312, 317), this court stated: "It is basic summary judgment law that the movant must establish its cause of action or defense sufficiently to warrant a court's directing judgment in its favor as a matter of law (Frank Corp. v Federal Ins. Co., 70 N.Y.2d 966; Alvarez v Prospect Hosp., 68 N.Y.2d 320; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068). `The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions
Moreover in Krupp v Aetna Life & Cas. Co. (103 A.D.2d 252, 262), we observed that "[i]n reaching a decision [on a summary judgment motion], the court may not ordinarily weigh the credibility of the affiants unless untruths are clearly apparent". Based upon our review of the record, we conclude that factual issues must be resolved in order to determine whether the public's right-of-way over the road has indeed been abandoned.
However, upon searching the record pursuant to our power under CPLR 3212 (b) (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106, 111; W.W.W. Assocs. v Giancontieri, 152 A.D.2d 333; Schleich v Gruber, 133 A.D.2d 224; Fertico Belgium v Phosphate Chems. Export Assn., 100 A.D.2d 165), we conclude that summary judgment must be granted to NCI against the plaintiff. The language in the 1970 deed, quoted above, clearly grants to NCI all the plaintiff's "right, title and interest, if any * * * in and to any streets abutting" the lands sold to NCI. This constitutes an express grant of a private easement over the subject road, independent of any public right-of-way. Moreover, the road is depicted on a map which a surveyor prepared on behalf of the plaintiff. The plaintiff provided NCI of a copy of that map at the time the property was conveyed (see, 5 Warren's Weed, New York Real Property, Streets and Highways, §§ 9.01-9.04 [4th ed]).
We further note that the plaintiff's reference, in his affidavit in support of his motion for summary judgment, to correspondence in 1971 between himself and NCI, is of no import since parol evidence is inadmissible to explain, vary or contradict a deed which is clear and unambiguous (see, Loch Sheldrake Assocs. v Evans, 306 N.Y. 297; Mercury Bay Boating Club v San Diego Yacht Club, 150 A.D.2d 82, 90). The language in the deed is a grant to NCI of an easement (see, Antonopulos v Postal Tel. Cable Co., 261 App Div 564, 566; 2 Warren's Weed, New York Real Property, Easements, §§ 3.01-3.02 [4th ed]).