| Garden Homes Mobile Home Park Co. LP v Patel |
| 2012 NY Slip Op 07624 [100 AD3d 688] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Garden Homes Mobile Home Park Company Limited Partnership,Respondent, v Dahyabhai Patel et al., Appellants, et al.,Defendant. |
—[*1] Vincent J. Catalano, Jr., Poughkeepsie, N.Y., for respondent.
In an action for a judgment declaring that the plaintiff has a prescriptive easement, thedefendants Dahyabhai Patel and Chandrika Patel appeal, as limited by their brief, from so muchof an order of the Supreme Court, Dutchess County (Sproat, J.), dated July 23, 2010, as grantedthat branch of the plaintiff's motion which was for summary judgment declaring that the plaintiffhas a prescriptive easement allowing it to maintain pipes over their property for the discharge ofeffluent from the plaintiff's sand filtration system.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment declaring that the plaintiff hasa prescriptive easement allowing it to maintain pipes over the property of the defendantsDahyabhai Patel and Chandrika Patel for the discharge of effluent from the plaintiff's sandfiltration system is denied.
A party claiming entitlement to an easement by prescription must demonstrate the adverse,open and notorious, and continuous use of the subject property for the prescriptive period (see Vitiello v Merwin, 87 AD3d632, 633 [2011]; Manouselis vWoodworth Realty, LLC, 83 AD3d 801 [2011]), which is 10 years (see 315 Main St. Poughkeepsie, LLC v WA319 Main, LLC, 62 AD3d 690, 691 [2009]). " '[T]he right acquired by prescription iscommensurate with the right enjoyed' " (Thury v Britannia Acquisition Corp., 19 AD3d 586, 587 [2005],quoting Prentice v Geiger, 74 NY 341, 347 [1878]; see Vitiello v Merwin, 87AD3d at 633; Zutt v State of New York, 50 AD3d at 1133).
Here, the plaintiff could only acquire a prescriptive easement for the discharge of effluentwhich was equal to what was actually used during the prescriptive period. Although the plaintiffsubmitted evidence which established the adverse, open and notorious, and continuous use of theappellants' land for the discharge of effluent during the prescriptive period, those submissionsreveal the existence of triable issues of fact as to the extent of the actual use, and whether theactual use was enlarged within the prescriptive period. Since the plaintiff failed to establish theextent of the actual use during the prescriptive period, it failed to establish its entitlement tojudgment as a matter of law (see Zutt v State of New York, 50 AD3d at 1133).Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion whichwas for summary judgment regardless [*2]of the sufficiency ofthe appellants' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]).
The appellants' remaining contentions are without merit, and we decline the appellants'invitation to search the record and to grant summary judgment in their favor. Rivera, J.P.,Chambers, Hall and Roman, JJ., concur.