| Nixon v Morris |
| 2012 NY Slip Op 00281 [91 AD3d 1170] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| James Nixon et al., Appellants, v Jesse J. Morris et al.,Respondents. |
—[*1] James P. Roman, Chittenango, for respondents.
Egan Jr., J. Appeal from an order of the Supreme Court (Cerio Jr., J.), entered January 27,2011 in Madison County, which partially denied plaintiffs' cross motion for summary judgmentdismissing defendants' counterclaim for a prescriptive easement.
Plaintiffs own adjoining parcels of waterfront property that lie between Lewis Point Roadand the east shore of Oneida Lake in the Town of Lenox, Madison County, and defendants ownnonlakeshore property on the opposite side of Lewis Point Road. In 2009, plaintiffs commencedthis action against, among others, defendants seeking declaratory and injunctive relief, as well asmonetary damages, in connection with their deeded rights to a certain private path that adjoinstheir parcels. The path in question is approximately 20 feet wide and runs in a generallynorthwest direction from Lewis Point Road to the lake. Defendants answered and counterclaimedcontending—in the alternative—that they had validly deeded easement rights to thepath, that the path was in fact a public road and that they had met the requirements for aprescriptive easement.
Plaintiffs thereafter moved to dismiss defendants' counterclaims and, by order enteredFebruary 25, 2010, Supreme Court partially granted plaintiffs' motion, concluding thatdefendants had no deeded rights to the path and, further, had failed to establish that the path inquestion was ever dedicated as a public roadway. Following discovery, defendants apparentlymoved for summary judgment dismissing the complaint, and plaintiffs cross-moved for summaryjudgment dismissing the remaining counterclaim for a prescriptive easement. Supreme Court,[*2]among other things, conditionally granted plaintiffs' crossmotion as it pertained to defendant Stephen D. Gorski, but denied the cross motion with respectto defendants Jesse J. Morris and Belinda J. Morris.[FN1]This appeal by plaintiffs ensued.
To obtain an easement by prescription, the Morrises would need to establish that their use ofthe path was "adverse, open, notorious, continuous and uninterrupted for the 10-year prescriptiveperiod" (Bouton v Williams, 42AD3d 795, 795 [2007]; see LewBeach Co. v Carlson, 77 AD3d 1127, 1128 [2010]; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; State of New York v Johnson, 45AD3d 1016, 1019 [2007]). As the record reflects that they cannot satisfy at least one of theforegoing elements, Supreme Court erred in failing to grant plaintiffs' cross motion for summaryjudgment dismissing the counterclaim for a prescriptive easement in its entirety.
In support of their cross motion for summary judgment, plaintiffs tendered, among otherthings, affidavits from certain of their neighbors, all of whom averred that they did not see theMorrises use the path or the related beachfront prior to the commencement of this lawsuit.Plaintiffs also offered the examination before trial testimony of, among others, Belinda Morris(hereinafter Morris). Although Morris' testimony establishes that her predecessors intitle—her parents—lived on the Lewis Point Road property until 2005,[FN2]she failed to demonstrate that they used the path in a continuous and uninterrupted manner duringthe prescriptive period. As to her own use of the path during the years in question, Morristestified that she lived on the property—at least off and on—until she married in1999, at which point she moved away. Morris could not, however, recall with any degree ofclarity or specificity where she and her husband thereafter resided, nor does the record reveal thefrequency with which they utilized the path between the time they married and their subsequentpurchase of the Lewis Point Road property. In this regard, Morris indeed testified that sheconsistently utilized the path for various purposes throughout the course of her lifetime,including birthday and prom parties, ice fishing, snowmobiling, picnicking and watching thesunset. This testimony, however, was vague and conclusory as to the dates upon (or even theyears during) which such use occurred (see Weir v Gibbs, 46 AD3d at1193)—particularly with respect to her use of the path during the prescriptive period (1999to 2009). In short, despite being questioned extensively on the subject and, in turn, affordedample opportunity to document their use of the path during the prescriptive period, Morris andher spouse failed to do so. Additionally, while the Morrises were not required to establish thattheir use of the path was exclusive (seeLevy v Morgan, 31 AD3d 857, 858 [2006]), they nonetheless failed to distinguish theiruse of the path from that of the general public (see Aubuchon Realty Co. v Cohen, 294AD2d 738, 739 [2002]; Rivermere Apts. v Stoneleigh Parkway, 275 AD2d 701, 702[2000]). Notably, Morris repeatedly testified that "everyone" used the path.[*3]
Peters, J.P., Malone Jr., Stein and Garry, JJ., concur.Ordered that the order is modified, on the law, with costs to plaintiffs, by reversing so muchthereof as denied plaintiffs' cross motion for summary judgment dismissing defendants'counterclaim for a prescriptive easement as to defendants Jesse J. Morris and Belinda J. Morris;cross motion granted and said counterclaim dismissed in its entirety; and, as so modified,affirmed.
Footnote 1: Supreme Court also—suasponte—converted defendants' motion for summary judgment to a motion to amend theiranswer to assert a counterclaim for use of the "foreshore" of Oneida Lake that is adjacent toplaintiffs' properties.
Footnote 2: Morris purchased the propertyfrom her parents in 2005 and thereafter razed her childhood home and constructed the residencein which she and her husband presently reside.