| Weir v Gibbs |
| 2007 NY Slip Op 10013 [46 AD3d 1192] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Candace K. Weir et al., Appellants, v Peter E. Gibbs et al.,Respondents. |
—[*1] Poklemba & Hobbs, L.L.C., Saratoga Springs (John J. Poklemba of counsel), forrespondents.
Peters, J. Appeal from an order of the Supreme Court (Dawson, J.), entered September 18,2006 in Essex County, upon a decision of the court in favor of defendants.
In 1978, plaintiff Candace K. Weir (hereinafter plaintiff) and her husband, David A. WeirJr.,[FN1] acquired certain real property in the Town of Westport, Essex County, which is abutted [*2]by Lake Champlain to the east and is situated to the south ofdefendants' property. Several private roads provided access to this and other parcels of land fromthe public roads. One such private road is Drive C, which crossed defendants' property in anorth-south direction. In 1981, plaintiff obtained additional property that adjoined defendants'parcel to the north and, in 1987, a third parcel was acquired which abutted the second parcel'snorthern boundary. In 1999, plaintiffs commenced the instant action, pursuant to RPAPL article15, seeking a declaration, as here relevant, that they acquired a prescriptive easement overdefendants' property to use Drive C.[FN2] Following a nonjury trial, Supreme Court dismissed the complaint, prompting plaintiffs'appeal.[FN3]
To prevail on a claim for a prescriptive easement, plaintiffs must "demonstrate by clear andconvincing evidence that [their] use of defendants' property was for [their] benefit and wasadverse, open, notorious, continuous and uninterrupted for 10 years" (Gravelle v Dunster, 2 AD3d 964,965 [2003]). Once these elements are established, a presumption of hostility arises, therebyshifting the burden to defendants to show that the use was permissive (see Wechsler v People, 13 AD3d941, 944 [2004]; Gravelle v Dunster, 2 AD3d at 965); permissive use will beinferred where the relationship of the parties evinced neighborly cooperation (see Allen v Mastrianni, 2 AD3d1023, 1024 [2003]). Even if the property is only used seasonally, it will not be fatal so longas the use was continuous and uninterrupted, "commensurate with appropriate seasonal use"(Alexy v Salvador, 217 AD2d 877, 879 [1995]).
Here, testimony indicated that plaintiff first used Drive C shortly after purchasing the firstparcel of property and that subsequent to the 1981 purchase, she, her family and guests, theproperty's caretaker and the renters of her cottages would traverse Drive C, without ever askingdefendants' permission, to reach a storage shed and a swimming cove located on their secondparcel to the north of defendants' land. Yet, plaintiffs' testimony was vague and speculative withrespect to the dates and times of said use. Moreover, given the congenial relationship between theparties in the early to mid-1980s, permission to use Drive C must be inferred until at least 1985when defendants, through their attorney, requested that plaintiffs, their family and guests refrainfrom using Drive C. Testimony further established that defendants then took successive steps toimpede both vehicular and pedestrian traffic across Drive C, from a chain across the road to apole across the path. Defendants finally found it necessary, in 1986, to erect a split rail fence.This testimony was buttressed by testimony proffered by plaintiffs, describing the frustration oftheir caretaker, in 1989, in being prevented from using Drive C. It resulted in his construction ofa pathway on one of plaintiffs' adjoining parcels to connect with the other internal roads to avoidDrive C.[*3]
Given the deference accorded to Supreme Court'sfindings (see Mobile Motivations, Inc. vLenches, 26 AD3d 568, 570 [2006]), and plaintiffs' failure to appropriately detail theiractual use of Drive C during the relevant seasonal time periods, we find that with testimonyconfirming defendants' successive erection of obstacles to Drive C (see Bouton v Williams, 42 AD3d795, 796 [2007]; Palma v Mastroianni, 276 AD2d 894, 895 [2000]), Supreme Courtproperly concluded that plaintiffs failed to sustain their burden to establish a prescriptiveeasement.
Mercure, J.P., Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote 1: David A. Weir Jr., a plaintiff inthis action, died after the commencement of this action and before Supreme Court issued itsorder. As the 1981 deed lists plaintiff as the grantee, which parcel was subsequently transferredin 1996 to plaintiff The Stables, LLC, and this claim for a prescriptive easement rests primarilyon conduct motivated by and following the 1981 acquisition of land, we amend the caption, onour own motion, to omit David A. Weir as a party (see Bova v Vinciguerra, 139 AD2d797, 799 [1988]; see also CPLR 1015 [b]; 1021).
Footnote 2: Supreme Court dismissedplaintiffs' other causes of action at the close of their case, prompting defendants to withdraw theircounterclaims.
Footnote 3: Plaintiffs, owningapproximately 21 acres surrounding defendants' one-acre lot, were previously before this Courtchallenging an area variance granted to defendants to construct a garage (Matter of Weir vZoning Bd. of Appeals of Town of Westport, 263 AD2d 752 [1999]).