| Vitiello v Merwin |
| 2011 NY Slip Op 06260 [87 AD3d 632] |
| August 16, 2011 |
| Appellate Division, Second Department |
| Josephine Vitiello et al.,Appellants-Respondents, v Carolyn Merwin et al.,Respondents-Appellants. |
—[*1] Van DeWater & Van DeWater, LLP, Poughkeepsie, N.Y. (James E. Nelson of counsel), forrespondents-appellants.
In an action pursuant to RPAPL article 15 to compel the determination of claims to realproperty and for injunctive relief, the plaintiffs appeal, as limited by their brief, from statedportions of a judgment of the Supreme Court, Dutchess County (Brands, J.), dated April 2, 2010,which, after a nonjury trial, inter alia, restricted their use of a prescriptive easement to certainlimited purposes, directed them to remove certain improvements thereon, and limited their use ofthe easement to a 10-foot-wide area of the property, and the defendants cross-appeal from somuch of the same judgment as denied their request for leave to apply for an award of fees andexpenses in defending against the plaintiffs' fourth cause of action.
Ordered that the judgment is modified, on the law, by deleting the ninth "WHEREAS"paragraph and the seventh, eighth, ninth, tenth, eleventh, and twelfth decretal paragraphs thereof,and by adding a provision to the thirteenth decretal paragraph thereof directing the plaintiffs torestore to its original condition only that area of the subject Merwin Parcel beyond the 10-footwidth of the subject easement; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
Upon review of a determination rendered after a nonjury trial, this Court's authority "is asbroad as that of the trial court," and this Court may "render the judgment it finds warranted by thefacts, taking into account in a close case the fact that the trial judge had the advantage of seeingthe witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983] [internal quotation marks omitted]; see Walsh v Ellis, 64 AD3d 702, 704 [2009]; Krol vEckman, 256 AD2d 945, 946-947 [1998]).
The plaintiffs demonstrated that they possessed an easement by prescription over thedefendants' land for use as an access road to their own property. "An easement by prescription isgenerally demonstrated by proof of the adverse, open and notorious, continuous, anduninterrupted use of the subject property for the prescriptive period" (Almeida v Wells, 74 AD3d 1256,1259 [2010]; see 315 Main St.Poughkeepsie, LLC v WA, 319 Main, LLC, 62 AD3d 690, 691 [2009]; Frumkin vChemtop, 251 AD2d 449 [1998]). The elements of a prescriptive easement must beestablished by clear and convincing [*2]evidence (see Air Stream Corp. v 3300 LawsonCorp., 84 AD3d 987 [2011]; Mandia v King Lbr. & Plywood Co., 179 AD2d150, 156 [1992]), and " '[t]he right acquired by prescription is commensurate with the rightenjoyed' " (Thury v BritanniaAcquisition Corp., 19 AD3d 586, 587 [2005], quoting Prentice v Geiger, 74 NY341, 347 [1878]; see Zutt v State ofNew York, 50 AD3d 1133 [2008]).
The plaintiffs established that their adverse use of the subject road, tacked on to the use ofthe road by their predecessors in title, was open and notorious, continuous, and uninterrupted forthe requisite statutory period. While the evidence demonstrated that the plaintiffs made someimprovements to the subject area and increased the frequency of its use as an access road to adwelling, the nature of the use was consistent with that made by their immediate predecessorsand satisfied the prescriptive period. However, the record further establishes, as the trial courtfound, that the plaintiffs impermissibly expanded the dimensions of the easement beyond the10-foot width that existed in 2001 and erected a gate and a fence on the defendants' property.Therefore, the plaintiffs must remove the gate and the fence, and they must further restore thearea beyond the 10-foot width of the easement to its original condition. We have modified thejudgment accordingly.
The defendants' contention that the Supreme Court improvidently exercised its discretion indenying their request for leave to apply for an award of fees and expenses they incurred indefending against the plaintiffs' fourth cause of action is without merit. Mastro, J.P., Chambers,Austin and Cohen, JJ., concur.