(dissenting in part). We respectfully dissent in part and would modify the judgment by vacating the declaration in the last decretal paragraph with respect to subparcels 28A, 28B, 29A, 29B, 30A, and 30B, and parcels 31 through 33 and granting judgment in favor of plaintiff declaring that quarrying or mining is a permitted use on those subparcels and parcels and by vacating the declaration in that decretal paragraph with respect to subparcel 25D. The status of that subparcel is not properly determined in the context of the instant motion and cross motion for summary judgment.
Freliminarily, we note our agreement with the majority that Supreme Court properly declared that plaintiff was not entitled to quarry parcel 5 as a lawful nonconforming use. As the majority correctly notes, parcel 5 is physically separated by Indian Road from plaintiffs other lands, and to afford it nonconforming use status would impermissibly extend the protection of a permitted nonconforming use established on one parcel of land to a physically separate though adjoining parcel (see Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278, 286 [1980]).
Addressing first subparcel 25D, we note that we cannot agree with the majority’s analysis with respect to that subparcel because, in our view, the majority incorrectly states that plaintiff did not demonstrate that it acquired the rights to quarry that subparcel prior to 1969. Flaintiff submitted an affirmation of a title examiner and attorney, who concluded that all of the property identified as parcel 2, which necessarily included subparcel 25D, was acquired in fee or by lease prior to 1969. Additionally, plaintiff submitted an affidavit of its executive vice-president, who stated that subparcel 25D was leased in 1959 by plaintiffs predecessor in interest. In our view, plaintiff thereby raised an issue of fact whether plaintiffs predecessor in interest leased subparcel 25D prior to 1969, and thus neither party is entitled to summary judgment with respect to the status of subparcel 25D.
We further disagree with the majority that quarrying or mining is not a lawful nonconforming use on subparcels 17C/25C *1233and 12B/25I and that subparcels 28A and B, 29A and B, and 30A and B, and parcels 31 through 33 are not entitled to nonconforming use rights. The majority correctly agrees with plaintiff that the six streets comprising those subparcels and parcels are deemed abandoned as a right-of-way pursuant to Highway Law § 205 (1) (see Matter of Wills v Town of Orleans, 236 AD2d 889, 890 [1997]). In our view, however, the majority misconstrues the holding in Syracuse Aggregate Corp. in concluding that plaintiff failed to establish that it conducted some prior mining operations on those subparcels and parcels that evidenced “an intent to appropriate the entire parcel” for such operations (51 NY2d at 286). For example, parcels 28A and B appear to be, according to maps submitted by the parties, an unused extension of Hawthorne Avenue. Although the actual acreage of subparcels 28A and B is not clear from the record, it is obvious that those subparcels represent a relatively small percentage of the entire parcel and that property surrounding those subparcels has been mined. Under the majority’s interpretation of Syracuse Aggregate Corp., the owner of a mine/quarry would be required to conduct some activity on every square inch of its property in order to establish nonconforming use status for the entire parcel. In our view, however, Syracuse Aggregate Corp. does not require such activities throughout the entire property. Indeed, the Court of Appeals recognized therein that, “as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed” (id. at 285).
Our view that subparcels 28A and B, 29A and B, 30A and B, and parcels 31 through 33 are entitled to nonconforming use rights is supported by the facts in Syracuse Aggregate Corp. In that case, the petitioner owned a 25-acre parcel that had been used since the 1920s for the excavation of sand, gravel, topsoil and fill. The petitioner’s predecessor in interest made improvements to the land, including a network of haul roads, a structure located in the center of the property, and a storage shed for tools. This Court reversed the judgment of Supreme Court and, inter alia, authorized the petitioner “to conduct the nonconforming use on the entire parcel” even though the petitioner’s predecessor in interest had not excavated on every portion of the parcel (72 AD2d 254, 260 [1980]). In affirming our order, the Court of Appeals noted that no part of the petitioner’s land “was ever dedicated to a use other than the quarrying of sand and gravel” (51 NY2d at 286). The Court further noted that a landowner could not undertake a “few self-serving acts of a very limited nature ... [to throw] a protective mantle of *1234nonconforming use over his [or her] entire parcel” (id.). However, the Court went on to write that, where, as in Syracuse Aggregate Corp., the owner “engages in substantial quarrying activities on a distinct parcel of land over a long period of time and these activities clearly manifest an intent to appropriate the entire parcel to the particular business of quarrying, the extent of protection afforded by the nonconforming use will extend to the boundaries of the parcel even though extensive excavation may have been limited to only a portion of the property” (id.). Here, plaintiff and its predecessors in interest engaged in “substantial quarrying activities on a distinct parcel of land over a long period of time,” and it does not appear from this record that any part of the land was ever “dedicated to a use” other than quarrying (id.).
The requirement imposed by the majority that plaintiff establish that “any kind of quarrying activities” were conducted on every subparcel and parcel would render moot the nonconforming use issue because, if plaintiff could establish that it conducted “any kind of quarrying activities” on every square inch of its property, there would be no question that the entire parcel would be entitled to nonconforming use status. In our view, it is inappropriate to divide a large parcel into various parts based on dates of lease and/or acquisition. Rather, in accordance with the analysis of the Court of Appeals in Syracuse Aggregate Corp., we conclude that the distinct parcel should be considered in its entirety, with the exception of the portion separated by a barrier, i.e., a roadway, in determining whether the parcel is entitled to nonconforming use status. Present— Martoche, J.E, Centra, Lunn, Peradotto and Green, JJ.