| Kessinger v Sharpe |
| 2010 NY Slip Op 02188 [71 AD3d 1377] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Dennis Kessinger et al., Appellants, v Jeremy Sharpe etal., Respondents. |
—[*1] David C. Laub, Buffalo, for defendants-respondents.
Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered July14, 2008 in an action pursuant to RPAPL article 15. The order denied the motion of plaintiffs forsummary judgment and granted summary judgment in favor of defendants.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the award of judgment in favor of defendants Jeremy Sharpe and CourtenaySharpe is vacated, the motion is granted and the matter is remitted to Supreme Court, NiagaraCounty, for further proceedings in accordance with the following memorandum: Plaintiffs appealfrom an order denying their motion seeking summary judgment declaring pursuant to RPAPL1521 (1) that they established a prescriptive easement with respect to that part of the drivewaylocated over the boundary between property owned by plaintiffs and Jeremy Sharpe andCourtenay Sharpe (defendants), respectively, and instead granting summary judgment in favor ofdefendants in the absence of a cross motion seeking that relief (see CPLR 3212 [b]). Wereverse, inasmuch as we conclude that the court erred in denying plaintiffs' motion.
"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,which is 10 years" (Walsh v Ellis,64 AD3d 702, 705 [2009]). "[W]here an easement has been shown by clear and convincingevidence to be open, notorious, continuous, and undisputed, it is presumed that the use washostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show thatthe use was permissive" (J.C. Tarr,Q.P.R.T. v Delsener, 19 AD3d 548, 550 [2005]; see Barlow v Spaziani, 63 AD3d 1225, 1226 [2009]). Plaintiffspurchased their property in 2002, and defendants purchased their property in 2005. In 2006defendants erected a fence on the driveway over the boundary between the properties, therebyblocking access both to the rear of plaintiffs' property and to the rear of their own property.Plaintiffs had continuously used the driveway until 2006, when the fence was erected bydefendants.
In support of their motion, plaintiffs submitted the affidavits of five neighbors attesting tothe shared use of the driveway in question by the predecessors in interest of plaintiffs and [*2]defendants. Indeed, two of those affidavits establish that theresidents of both properties used the driveway in excess of 50 years. Plaintiffs established thatthere are two driveways that in effect created one circular driveway prior to the erection of thefence. The driveways ran on either side and to the rear of their residence, providing plaintiffswith access to a four-bay wooden structure that was used as a garage. In addition, there is acarriage stone and a stone curb in the rear of plaintiffs' residence. The location of the carriagestone near the rear door and the curb supports the conclusion that plaintiffs' predecessors ininterest utilized the two driveways as one circular driveway, as a means of ingress and egress tothe rear of the residence. Thus, plaintiffs established "a continuing open and notorious use ofdefendants' property for the necessary 10 years, shifting the burden to defendants to demonstratethat [plaintiffs'] use was permissive" (Gravelle v Dunster, 2 AD3d 964, 965 [2003]; see Barlow v Spaziani, 63 AD3d1225, 1226 [2009]). In opposition to the motion, however, defendants established only thatthe immediate predecessor in interest of their property, i.e., Courtenay Sharpe's parents,purchased the property in 2002 and told plaintiffs in 2003 that they were not permitted to use thedriveway, and defendants established that there were no recorded easements with respect to thedriveway. That evidence is insufficient to raise an issue of fact whether plaintiffs' use and that ofplaintiffs' predecessors in interest had been permissive (see Gravelle, 2 AD3d at965-966; cf. Palumbo v Heumann, 295 AD2d 935, 935-936 [2002]). We thereforereverse the order, vacate the award of judgment in favor of defendants, grant plaintiffs' motionfor summary judgment and remit the matter to Supreme Court to grant judgment in favor ofplaintiffs declaring valid their claim to a prescriptive easement with respect to that part of thedriveway in question (see RPAPL 1521 [1]) and to order defendants to remove the fenceforthwith. We further direct the court upon remittal to conduct an immediate trial on damagespursuant to CPLR 3212 (c). Present—Scudder, P.J., Centra, Fahey and Green, JJ.