| Manouselis v Woodworth Realty, LLC |
| 2011 NY Slip Op 03039 [83 AD3d 801] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Spiros Manouselis et al., Appellants, v Woodworth Realty,LLC, et al., Respondents. |
—[*1] Novick & Kaner, P.C., New Rochelle, N.Y. (Morton Kaner of counsel), forrespondents.
In an action for a judgment declaring that the plaintiffs have a prescriptive easement over aportion of the defendants' property, the plaintiffs appeal from a judgment of the Supreme Court,Westchester County (Lefkowitz, J.), dated May 25, 2010, which, upon a jury verdict on the issueof liability in favor of the defendants and against them, declared that they do not have aprescriptive easement over the defendants' property.
Ordered that the judgment is affirmed, with costs.
"An easement by prescription is demonstrated by proof of the adverse, open and notorious,continuous and uninterrupted [use of the property] for the prescriptive period. Generally, wherean easement 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 burden shifts to the opponent ofthe allegedly prescriptive easement to show that the use was permissive" (J.C. Tarr, Q.P.R.T. v Delsener, 19AD3d 548, 550 [2005] [citations and internal quotation marks omitted]; see Eskenazi v Sloat, 40 AD3d577, 578 [2007]; Duckworth v NingFun Chiu, 33 AD3d 583, 584 [2006]; Frumkin v Chemtop, 251 AD2d 449[1998]).
Here, there is a "valid line of reasoning and permissible inferences" which could lead arational jury to conclude, as did the jury here, that the plaintiffs failed to establish that they havea prescriptive easement over the defendants' property (Cohen v Hallmark Cards, 45NY2d 493, 499 [1978]; see Eskenazi v Sloat, 40 AD3d at 578; Gannon v All Car Movers, Ltd., 18AD3d 702, 702-703 [2005]). In this case, the public's use of the subject property renderedthe presumption of hostility inapplicable (see Burcon Props. v Dalto, 155 AD2d 501[1989]; Susquehanna Realty Corp. v Barth, 108 AD2d 909 [1985]). Moreover, we cannotsay, upon the exercise of our factual review power, that the evidence so preponderated in favor ofthe plaintiffs that the verdict could not have been reached on any fair interpretation of theevidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). Covello, J.P.,Eng, Hall and Roman, JJ., concur.