| Chaner v Calarco |
| 2010 NY Slip Op 07637 [77 AD3d 1217] |
| October 28, 2010 |
| Appellate Division, Third Department |
| Belinda Chaner, Respondent, v Paul Calarco et al.,Appellants. |
—[*1] Freeman Howard, P.C., Hudson (Paul M. Freeman of counsel), for respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Czajka, J.), entered December 17,2008 in Columbia County, which, among other things, partially granted plaintiff's cross motionfor summary judgment.
In 1974, plaintiff and Benjamin Autieri obtained title to a three-acre parcel in ColumbiaCounty and, over the next several years, they constructed a seasonal-use residence on it. Duringthat time, they also constructed a driveway to provide access to the cabin. The driveway waslocated entirely on the adjacent six-acre parcel that was owned at the time by Autieri and hisestranged wife. The construction of the driveway in that location created a strip of the six-acreparcel between the driveway and plaintiff's property line. Autieri conveyed his interest in thethree-acre parcel to plaintiff in 1979 and she began cultivating and maintaining the strip of landas her front yard, which she continued to maintain after Autieri's death in 1990. When Autieridied, his estranged wife became the sole owner of the six-acre parcel. She sold that parcel todefendants in 2005, who then removed plaintiff's landscaping, walkway and a large tree from thestrip and installed tall fencing along the property line only several feet from the front door ofplaintiff's residence. Plaintiff thereafter commenced this action seeking, among other things, adeclaration that she obtained an easement by prescription over the driveway and that she obtainedby adverse possession title to the strip of land. Following joinder of issue, defendants moved andplaintiff cross-moved for summary judgment. Supreme Court granted plaintiff's cross motionwith respect to her adverse possession and prescriptive easement claims and denied defendants'motion. Defendants appeal.[*2]
Initially, with respect to plaintiff's adverse possessionclaim, there is no genuine disagreement that plaintiff's use of the strip of land at issue was open,notorious and continuous for the prescriptive period; the parties' dispute instead centers upon thequestion of whether plaintiff's use was hostile.[FN*]Typically, the use is presumed to be hostile when, as here, the other elements of adversepossession have been established (see 2N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1393 [2009], lv denied 14NY3d 706 [2010]; Sadowski vTaylor, 56 AD3d 991, 994 [2008]). Nevertheless, if it can be shown that the initial usewas permissive, then " 'adverse possession does not commence until such permission or authorityhas been repudiated and renounced and the possessor thereafter has assumed the attitude ofhostility to any right in the real owner' " (Longshore v Hoel Pond Landing, 284 AD2d815, 816 [2001], lv denied 97 NY2d 603 [2001], quoting Hinkley v State of NewYork, 234 NY 309, 316 [1922]).
Here, in support of their motion for summary judgment, defendants produced evidence of aclose and cooperative relationship between plaintiff and Autieri, who used the residence withplaintiff and helped her cultivate and maintain the strip of land, which was known to be a part ofthe six-acre parcel (see Esposito v Stackler, 160 AD2d 1154, 1155-1156 [1990]). Thus,from plaintiff's own admissions, it may be implied that plaintiff's initial use was with Autieri'spermission (see Koudellou vSakalis, 29 AD3d 640, 641 [2006]), which rebuts the presumption of hostility. Plaintiffoffered no evidence in opposition to defendants' motion to prove that the implied permission wasever revoked or repudiated, and there is no record evidence that Autieri's wife ever took action toreclaim the strip of land from plaintiff. We are not convinced by plaintiff's claim that the usebecame hostile when Autieri died and his wife became the sole owner of the property inasmuchas the change in the ownership of the disputed land does not automatically alter the permissivenature of the use (see generally Ropitzkyv Hungerford, 27 AD3d 1031, 1032 [2006]; Longshore v Hoel Pond Landing,284 AD2d at 816). Because plaintiff failed to raise a triable issue of fact as to the issue ofpermission, defendants are entitled to summary judgment dismissing plaintiff's adversepossession claim.
Defendants are likewise entitled to summary judgment dismissing the remainder of thecomplaint. Although plaintiff claimed that she established an easement by prescription over thedriveway, the record reflects that all landowners along the driveway—including defendantsand plaintiff—were granted ingress and egress rights over the driveway by a judgment ofthe Supreme Court entered in November 1984. The existence of such judgment negates theelement of hostility necessary to establish a prescriptive easement (see e.g. Penn Hgts. Beach Club, Inc. vMyers, 42 AD3d 602, 605 [2007], lv dismissed 10 NY3d 746 [2008]). Finally,plaintiff's remaining causes of action must be dismissed because they are premised on theassumption that plaintiff had acquired title to the disputed strip of land.
Peters, J.P., Spain, Stein and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, with costs to defendants, by reversing [*3]so much thereof aspartially granted plaintiff's cross motion and denied defendants' motion; cross motion denied inits entirety, motion granted, summary judgment awarded to defendants and complaint dismissed;and, as so modified, affirmed.
Footnote *: The recent amendments toRPAPL article 5 (see L 2008, ch 269) are not applicable to this action; it was commencedbefore the amendments took effect.