| Masucci v DeLuca |
| 2012 NY Slip Op 05397 [97 AD3d 550] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Robert Masucci et al., Appellants-Respondents, v RobertA. DeLuca et al., Respondents-Appellants. |
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Westerman Ball Ederer Miller & Sharfstein, LLP, Uniondale, N.Y. (Greg S. Zucker ofcounsel), for respondents-appellants.
In an action, inter alia, to recover damages for trespass, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.),dated December 22, 2010, as granted that branch of the defendants' motion which was forsummary judgment dismissing the second cause of action, and the defendants cross-appeal, aslimited by their brief, from so much of the same order as denied that branch of their motionwhich was for summary judgment on their first counterclaim, which seeks a judgment declaringthat they have a prescriptive easement with respect to the subject real property.
Ordered that the order is reversed insofar as appealed from, on the law, and that branch of thedefendants' motion which was for summary judgment dismissing the second cause of action isdenied; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The plaintiffs own real property adjacent to the defendants' property in Staten Island. In2007, the plaintiffs commenced this action seeking, inter alia, to recover damages for trespassdue to the defendants' installation of an underground pipe in the area between the plaintiffs'tennis court fence and the defendants' retaining wall (hereinafter the disputed area). Thedefendants interposed various counterclaims, alleging, inter alia, that they were entitled to ajudgment declaring that they have a prescriptive easement with respect to the disputed area.
The defendants moved for summary judgment dismissing the complaint and on theircounterclaims. In the order appealed and cross-appealed from, the Supreme Court, inter alia,granted that branch of the motion which was for summary judgment dismissing the second causeof action, which alleges trespass, and denied that branch of the motion which was for summaryjudgment on the first counterclaim, which seeks a judgment declaring that the defendants have aprescriptive easement with respect to the disputed area. The plaintiffs appeal and the defendantscross-appeal from stated portions of the order. We reverse the order insofar as appealed from,and affirm the [*2]order insofar as cross-appealed from.
To acquire an easement by prescription, it must be shown that the use was hostile, open andnotorious, and continuous and uninterrupted for the prescriptive period of 10 years (see Morales v Riley, 28 AD3d 623[2006]; Mandia v King Lbr. & Plywood Co., 179 AD2d 150, 156 [1992]; Gorman vHess, 301 AD2d 683, 685 [2003]). Here, the defendants failed to show that their use of thespecific portion of the disputed below-ground area that contains the underground pipe was openand notorious for the prescriptive period (cf. Village of Schoharie v Coons, 34 AD2d701, 702 [1970], affd 28 NY2d 568 [1971]). Accordingly, they failed to establish theirentitlement to judgment as a matter of law with respect to the prescriptive easementcounterclaim, and summary judgment with respect to that counterclaim was properly denied(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
"The essence of trespass to real property is injury to the right of possession, and such trespassmay occur under the surface of the ground" (Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d 61, 66[2009]). Here, the defendants failed to establish their prima facie entitlement to judgment as amatter of law dismissing the second cause of action, which alleges trespass, as they did notdemonstrate a right to insert the underground pipe in the disputed area.
The plaintiffs' contention that the defendants lack standing to bring counterclaims on behalfof their homeowners' association is not properly before this Court, and the parties' remainingcontentions are without merit. Dillon, J.P., Balkin, Belen and Chambers, JJ., concur.
Motion by the appellants-respondents on an appeal and cross appeal from an order of theSupreme Court, Richmond County, dated December 22, 2010, to dismiss the cross appeal on theground that it has been rendered academic, and to enlarge their time to perfect the appeal. Bydecision and order of this Court dated August 25, 2011, that branch of the motion which was todismiss the cross appeal was held in abeyance and referred to the panel of Justices hearing theappeal and cross appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal and cross appeal, it is
Ordered that the branch of the motion which was to dismiss the cross appeal is denied.Dillon, J.P., Balkin, Belen and Chambers, JJ., concur.