| Barlow v Spaziani |
| 2009 NY Slip Op 04324 [63 AD3d 1225] |
| June 4, 2009 |
| Appellate Division, Third Department |
| Ella L. Barlow et al., Respondents, v Julie Spaziani et al.,Defendants, and Lynn J. Devlin, Appellant. |
—[*1] Levene, Gouldin & Thompson, Vestal (Gary W. Farneti of counsel), forrespondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Dowd, J.), entered July 29, 2008 inOtsego County, which granted plaintiffs' motion for summary judgment dismissing defendantLynn J. Devlin's claim of a prescriptive easement.
The parties own adjoining property on Goodyear Lake in the Town of Milford, OtsegoCounty. Defendant Lynn J. Devlin (hereinafter defendant) has owned her lot since 1989, havingreceived it from her deceased parents who purchased it in 1972. She and her parents accessed thelot by using a short driveway (also referred to in the record as a turnaround) that extended from aprivate road known as Barlow Road. Plaintiff Ella L. Barlow (hereinafter plaintiff), who hasowned her lot since 1960, commenced this action seeking, among other things, to enjoindefendant from using the subject short driveway, asserting that it was located on her property.An amended complaint was served adding plaintiff's daughters as additional plaintiffs afterplaintiff transferred the property to her daughters while retaining a life estate for herself.Defendant contended, among other things, that she has an easement by prescription over thedisputed area. Following disclosure, plaintiffs moved for summary judgment dismissingdefendant's claim for a prescriptive easement and Supreme Court granted the motion. Defendantappeals.[*2]
We initially note that, given the procedural context, weview all evidence in the light most favorable to the nonmovant and decide only whether triableissues have been raised (see generallyMatter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 401 [2006]; Sillman vTwentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The deposition testimony ofdefendant and her husband, as well as an affidavit of a resident of the area for 50 years, supplysufficient evidence to raise a triable issue as to whether defendant and her predecessors hadcontinuously used the disputed driveway for well in excess of the prescriptive period. If sheprevails on that issue at trial, then "[s]uch open, notorious and uninterrupted use of the accessway is presumed to be adverse or hostile, under a claim of right [and] [t]his casts the burden on[plaintiffs] to negate the presumption by showing that the use . . . was permissive"(Brocco v Mileo, 144 AD2d 200, 201 [1988] [citations omitted]; see Gordon vThomas, 177 AD2d 909, 909-910 [1991]). Plaintiff did not aver that she gave explicitpermission to defendant or her parents to use the driveway, but instead relied upon an ostensiblyunspoken assumption of being neighborly. While permission can be implied from neighborlycooperation (see Allen vMastrianni, 2 AD3d 1023, 1024 [2003]) or a familial relationship (see McNeill vShutts, 258 AD2d 695, 696 [1999]), there is evidence in the record that defendant and herparents rarely conversed with plaintiff and that, in fact, tension existed between the individualseven prior to this litigation. It cannot be concluded as a matter of law that an atmosphere ofneighborly accommodation existed regarding permission to use the driveway. Moreover, the factthat other vehicles—such as town snowplows and business delivery vehicles—mayhave occasionally used the subject driveway does not necessarily defeat the claim of aprescriptive easement (see McLean v Ryan, 157 AD2d 928, 930 [1990]). The recordreveals triable issues regarding a prescriptive easement and, accordingly, we reverse.
Spain, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is reversed, onthe law, with costs, and motion denied.