| Meyers v Carey |
| 2010 NY Slip Op 06196 [75 AD3d 949] |
| July 22, 2010 |
| Appellate Division, Third Department |
| Frances Patricia Meyers et al., as Trustees of the Lillian HomenickFamily Trust, Respondents, v Mary Lynn Carey, Also Known as Mary Lynn Fabiano,Appellant. |
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Malone Jr., J. Appeal from an order and judgment of the Supreme Court (O'Connor, J.),entered June 3, 2009 in Ulster County, upon a decision of the court in favor of plaintiffs.
Plaintiffs and defendant own adjoining properties in the Town of Saugerties, Ulster Countythat were once part of one large parcel, and a stone driveway over defendant's lot is the onlydeveloped means by which plaintiffs are able to access their lot. In 2005, after plaintiffs enteredinto a contract to sell their property, defendant informed the potential purchasers that she wouldnot allow them to use the driveway to access the property. Apparently as a result, the purchaserscanceled the contract. Plaintiffs then commenced this declaratory judgment action seeking,among other things, a declaration that they have a valid easement over defendant's driveway, aswell as damages related to the lost sale of the property. Following a nonjury trial, Supreme Courtfound that plaintiffs had established that a prescriptive easement existed over the driveway, butdismissed that part of the complaint seeking damages based upon the canceled contract.Defendant appeals.
"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 [*2]period, which is [currently] 10 years" (Kessinger v Sharpe, 71 AD3d1377, 1378 [2010] [internal quotation marks and citation omitted]; see McNeill vShutts, 258 AD2d 695, 696 [1999]). Here, there is clear and convincing proof that the stonedriveway was in existence and use prior to the time that plaintiffs' parents purchased the propertyin 1955, and that the continued use of the driveway by plaintiffs and their parents was open,continuous and undisputed ever since. In light of such evidence, it is presumed that the use washostile and the burden thus shifted to defendant to demonstrate that the use was, instead,permissive (see Barlow v Spaziani,63 AD3d 1225, 1226 [2009]; J.C.Tarr, Q.P.R.T. v Delsener, 19 AD3d 548, 550 [2005]). In that regard, defendant claimedthat she had told plaintiffs' parents that she considered their use of the driveway to be permissiveand also offered some proof that she maintained a neighborly and cooperative relationship withplaintiffs and their parents after she purchased her property in 1989. However, because noevidence was offered to prove that the use by plaintiffs' parents was permissive during the 34years between the time when plaintiffs' parents purchased their property and the time whendefendant purchased hers, the use during that time is presumed to be hostile (see Beutler vMaynard, 80 AD2d 982, 983 [1981]; compare Allen v Mastrianni, 2 AD3d 1023 [2003]; Hassinger vKline, 91 AD2d 988 [1983]). Inasmuch as that time period exceeds the requisite statutoryprescriptive period (see CPLR 212 [a]; see also former Civ Prac Act § 34),plaintiffs established that a prescriptive easement exists over defendant's driveway. Accordingly,the order and judgment entered in favor of plaintiffs will not be disturbed.
Cardona, P.J., Mercure, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment andorder is affirmed, with costs.