| Old Town Tree Farm, Inc. v Long Is. Power Auth. |
| 2012 NY Slip Op 08291 [101 AD3d 692] |
| December 5, 2012 |
| Appellate Division, Second Department |
| Old Town Tree Farm, Inc., Respondent, v Long IslandPower Authority et al., Appellants. |
—[*1] William R. Garbarino, Sayville, N.Y. (Donald R. Hamill of counsel), forrespondent.
In an action pursuant to Real Property and Proceedings Law article 15 to compel thedetermination of claims to real property, the defendants appeal from an order of the SupremeCourt, Suffolk County (Martin, J.), entered August 16, 2011, which denied their motion forsummary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
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]). "Absolute necessity in fact is thestandard for a finding of an easement by necessity" (Michalski v Decker, 16 AD3d 469, 470 [2005]; see Town ofPound Ridge v Golenbock, 264 AD2d 773, 774 [1999]; Van Schaack v Torsoe, 161AD2d 701, 703 [1990]; McQuinn v Tantalo, 41 AD2d 575 [1973]).
Here, the defendants failed to make a prima facie showing of entitlement to judgment as amatter of law by conclusively negating any one of the elements of an easement by prescriptionwhich, if proven at trial, would warrant the recognition of an easement by prescription (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Manouselis v Woodworth Realty, LLC,83 AD3d 801 [2011]; Mee Wah Chan v Y & Dev. Corp., 82 AD3d 942, 943 [2011];Bova v Vinciguerra, 184 AD2d 934, 934-935 [1992]; cf. Charlebois v Lobe-A Prop.Owners, 193 AD2d 916, 917 [1993]). The defendants also failed to make a prima facieshowing of entitlement to judgment as a matter of law by conclusively negating any one of theelements of an easement by necessity which, if proven at trial, would warrant the recognition ofsuch an easement (cf. Almeida vWells, 74 AD3d 1256, 1259 [2010]; Astwood v Bachinsky, 186 AD2d 949, 950[1992]).
Since the defendants failed to meet their prima facie burden, it is unnecessary to considerwhether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Starkey v Curry, 94 AD3d 866, 867 [2012]).[*2]
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Florio, J.P., Dickerson, Sgroi and Miller, JJ., concur.