| Ward v Murariu Bros., Inc. |
| 2012 NY Slip Op 07250 [100 AD3d 1084] |
| November 1, 2012 |
| Appellate Division, Third Department |
| Kevin Ward, Appellant, v Murariu Brothers, Inc.,Respondent. |
—[*1] Lewis & Stanzione, Catskill (Ralph C. Lewis Jr. of counsel), for respondent.
Mercure, J.P. Appeal from an amended order of the Supreme Court (Platkin, J.), entered July15, 2011 in Greene County, which denied plaintiff's motion for summary judgment and granteddefendant summary judgment partially dismissing the amended complaint.
In 2002, defendant acquired a parcel of property on which a 100-foot long driveway islocated. Plaintiff, the owner of adjacent property, has used the driveway to access his house since1989. After defendant allegedly blocked plaintiff's access to the driveway in 2008, plaintiffcommenced this action seeking a declaration that he has a prescriptive easement or an easementby necessity over the driveway. Following joinder of issue, plaintiff moved for summaryjudgment. Supreme Court denied the motion and, upon searching the record, granted partialsummary judgment to defendant, dismissing the first cause of action and declaring that plaintiffdoes not enjoy a prescriptive easement over the driveway. Plaintiff appeals, and we now affirm.
Plaintiff's primary argument is that Supreme Court erred in determining that he failed to raisea triable issue of fact regarding whether his use of defendant's driveway was hostile. To establishthe existence of an easement by prescription, a plaintiff must demonstrate, by clear andconvincing evidence, "that the use of the servient property was open, notorious, continuous and[*2]hostile for the prescriptive period; once the other elements ofthe claim are established"—as they were here—"hostility is generally presumed,thus shifting the burden to the defendant to demonstrate that the use was permissive" (Barra v Norfolk S. Ry. Co., 75 AD3d821, 823 [2010]; see Allen vMastrianni, 2 AD3d 1023, 1024 [2003]; McNeill v Shutts, 258 AD2d 695, 696[1999]). The presumption does not arise, however, when the parties' relationship was one ofneighborly cooperation or accommodation (see Alexander v Oakley, 95 AD3d 1391, 1392 [2012]; Allen vMastrianni, 2 AD3d at 1024; seealso Estate of Becker v Murtagh, 19 NY3d 75, 82 [2012]).
Defendant submitted evidence of neighborly accommodation, including an affidavit from itspredecessor's property manager, who stated that the prior landowner—which owneddefendant's property from 1997 to 2001—had a policy that neighbors were free to use thedriveway to access their own land, and townspeople and the fire department were free to use thedriveway to access a nearby creek. In his deposition, plaintiff admitted that in 1989, thepresumed owner of defendant's property expressly granted him permission to use the drivewayand asked if he had an interest in purchasing the land. In addition, plaintiff's realtor had informedhim that the previous owners of plaintiff's property had used the driveway and that plaintiff coulduse it as well. Finally, although plaintiff introduced a 1930s-era illustration of both propertiesshowing the driveway to be the only access to his land at that time, there is no evidence that thedriveway was continuously used for the requisite time period such that plaintiff's predecessorsacquired a prescriptive easement, as he asserts in the alternative. Given the evidence ofneighborly accommodation, plaintiff's testimony admitting that he was given express permissionto use the driveway, and the absence of any proof to contradict those statements, Supreme Courtproperly granted partial summary judgment to defendant dismissing the prescriptive easementclaim (see Alexander v Oakley, 95 AD3d at 1392; Allen v Mastrianni, 2 AD3d at1024; see also Nixon v Morris, 91AD3d 1170, 1172 [2012]).
Plaintiff's remaining arguments are either unpreserved or, upon consideration, have beenfound to be lacking in merit.
Spain, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the amended order isaffirmed, with costs.