| 315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC |
| 2009 NY Slip Op 03713 [62 AD3d 690] |
| May 5, 2009 |
| Appellate Division, Second Department |
| 315 Main Street Poughkeepsie, LLC, Appellant, v WA319 Main, LLC, Respondent. |
—[*1] Vergilis, Stenger, Roberts & Davis, LLP, Wappingers Falls, N.Y. (Kenneth M. Stenger andLisa M. Cobb of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff has a prescriptive easementover property owned by the defendant, the plaintiff appeals, as limited by its brief, from so muchof an order of the Supreme Court, Dutchess County (Brands, J.), dated May 23, 2008, as grantedthat branch of the defendant's motion which was for summary judgment declaring that it does nothave a prescriptive easement over the property and denied its cross motion for summaryjudgment declaring that it has a prescriptive easement over the property.
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter isremitted to the Supreme Court, Dutchess County, for the entry of a judgment declaring that theplaintiff does not have a prescriptive easement over the property owned by the defendant.
An easement by prescription is generally demonstrated by proof of the adverse, open andnotorious, continuous, and uninterrupted use of the subject property for the prescriptive period(see Turner v Baisley, 197 AD2d 681, 682 [1993]; see also Weinberg v Shafler,68 AD2d 944, 945 [1979], affd 50 NY2d 876 [1980]; Hassinger v Kline, 110Misc 2d 147, 148-149 [1981], affd 91 AD2d 988 [1983]), which is 10 years (seeRPAPL 501). Where the use has been shown by clear and convincing evidence to be open,notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burdenshifts to the opponent of the alleged prescriptive easement to show that the use was permissive(see Frumkin v Chemtop, 251 AD2d 449 [1998]; Turner v Baisley, 197 AD2d at682; Wechsler v New York State Dept. of Envtl. Conservation, 193 AD2d 856, 859-860[1993]).[*2]
While there was evidence in the present case that theplaintiff's use of the defendant's parking lot for the purpose of gaining access its own parking lotwas open, notorious, continuous, and undisputed, the defendant established as a matter of lawthat the plaintiff's use of the purported easement was permitted as a matter of willing accord andneighborly accommodation (seeDuckworth v Ning Fun Chiu, 33 AD3d 583, 583-584 [2006]; Allen v Mastrianni, 2 AD3d 1023,1024 [2003]; Frumkin v Chemtop, 251 AD2d at 449). Therefore, the burden shifted tothe plaintiff to come forward with evidence of hostile use sufficient to raise a triable issue of fact(see Frumkin v Chemtop, 251 AD3d at 450). Since the plaintiff failed to do so, theSupreme Court properly awarded summary judgment to the defendant.
The plaintiff's remaining contention is without merit.
Since this is, in part, a declaratory judgment action, the matter must be remitted to theSupreme Court, Dutchess County, for the entry of a judgment, inter alia, declaring that theplaintiff does not have a prescriptive easement over property owned by the defendant (seeLanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962],cert denied 371 US 901 [1962]). Rivera, J.P., Covello, Dickerson and Chambers, JJ.,concur.