| Millington v Kenny & Dittrich Amherst, LLC |
| 2015 NY Slip Op 00583 [124 AD3d 1108] |
| January 22, 2015 |
| Appellate Division, Third Department |
[*1]
| Susan E. Millington, Appellant, v Kenny &Dittrich Amherst, LLC, Respondent. |
Susan E. Millington, Diamond Point, appellant pro se.
Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Mark E. Cerasano ofcounsel), for respondent.
Lynch, J. Appeal from an order of the Supreme Court (Muller, J.), entered August29, 2013 in Warren County, which, among other things, granted defendant's motion forsummary judgment dismissing the complaint.
The parties own adjacent properties, known as 375 and 377 Canada Street, in theVillage of Lake George, Warren County. Those properties combine to form lot 111,which was purchased by plaintiff's father, William W. Millington, in 1955. Millingtonsold all but the northeast corner of the lot in 1956, retaining a four-foot-wide easement"south and west of the said reserved premises for ingress and egress thereto, snowremoval, maintenance, [and] repairs." Millington practiced law in a building at 377Canada Street. Over the years, a variety of businesses have operated in a commercialbuilding at 375 Canada Street. The area behind 375 and 377 Canada Street is used forparking, and may be accessed from Canada Street by means of a narrow alley runningbetween the buildings, or from a dirt road running behind the buildings.
Plaintiff, who is also an attorney, acquired 377 Canada Street from Millington in2010. Defendant acquired 371, 373 and 375 Canada Street in 2012, and it intends toconstruct a hotel on that property. A dispute arose as to whether plaintiff was entitled toaccess and park in the area behind 377 Canada Street, prompting her to commence thepresent RPAPL article 15 action. Plaintiff specifically argued that she has acquired thatpart of the parking area behind 377 Canada Street by adverse possession and, moreover,that she enjoys a prescriptive easement over that area and the routes to access it.Following joinder of issue, defendant moved for summary [*2]judgment. Plaintiff opposed the motion and cross-movedfor summary judgment. Supreme Court granted defendant's motion, and plaintiff nowappeals.
We affirm. Plaintiff initially argues that further discovery is required into the motivesof the former owner of 375 Canada Street and her son, as well as Millington's formersecretary—all of whom submitted affidavits in support of defendant'smotion—because she contends that each mischaracterized the use of the areabehind 377 Canada Street by plaintiff and Millington. It suffices to say that thoseindividuals are nonparties, and plaintiff does not elucidate how "further discovery wouldyield material evidence and also demonstrate how further discovery might reveal materialfacts in [defendant]'s exclusive knowledge" (Rochester Linoleum & Carpet Ctr., Inc. v Cassin, 61 AD3d1201, 1202 [2009] [internal quotation marks and citation omitted]; seeCPLR 3212 [f]; 2 N. St. Corp. vGetty Saugerties Corp., 68 AD3d 1392, 1396 [2009], lv denied 14 NY3d706 [2010]).
Turning to the merits, "[t]o establish a claim of adverse possession, the occupation ofthe property must be (1) hostile and under a claim of right (i.e., a reasonable basis for thebelief that the subject property belongs to a particular party), (2) actual, (3) open andnotorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years)"(Estate of Becker vMurtagh, 19 NY3d 75, 81 [2012]; see RPAPL 501; Walling v Przybylo, 7 NY3d228, 232 [2006]). "So long as the use is open, notorious and continuous for the10-year period, hostility will [generally] be presumed" (2 N. St. Corp. v GettySaugerties Corp., 68 AD3d at 1393 [citations omitted]). The presumption of hostilitymay not apply, however, "where there is a close and cooperative relationship between therecord owner and the person claiming title through adverse possession" (Estate ofBecker v Murtagh, 19 NY3d at 82). To put it differently, permissive use "may beinferred from a history of 'neighborly cooperation and accommodation' " (McKeag v Finley, 93 AD3d925, 927 [2012], quoting Allen v Mastrianni, 2 AD3d 1023, 1024 [2003]).
Defendant argues, among other things, that plaintiff cannot satisfy the element ofhostility. Plaintiff asserts that the hostile use of the area behind 377 Canada Street beganin 1963, when Millington began parking there after a motel operating at 375 CanadaStreet burned down. She is therefore attempting to establish Millington's hostile use ofproperty that he had recently deeded away, a claim requiring "strong[ ] proof" that iswholly lacking here (Sherman v Kane, 86 NY 57, 69 [1881]; see Mannix vRiordan, 75 App Div 135, 137 [1902]). Plaintiff does not dispute that both she andMillington were on good terms with the prior owners of 375 Canada Street and thatMillington had "a very friendly, cordial relationship [with nearby businesses] when itcame to . . . accommodating the parking needs for all of the businesses onthe block" (see Estate of Becker v Murtagh, 19 NY3d at 82; McKeag vFinley, 93 AD3d at 927; Allen v Mastrianni, 2 AD3d at 1024). Indeed, it isparticularly worthy of note that plaintiff does not provide an affidavit from Millington,who could presumably rebut this evidence of cooperation and explain how his use of theparking area and access thereto was hostile. Given this unanswered evidence ofneighborly accommodation, Supreme Court properly granted summary judgment todefendant and dismissed the adverse possession claim (see Penn Hgts. Beach Club, Inc. vMyers, 42 AD3d 602, 606-607 [2007], lv dismissed 10 NY3d 746[2008]; Gorman v Hess, 301 AD2d 683, 685 [2003]; Allen v Mastrianni,2 AD3d at 1024).
Plaintiff's additional claims that she enjoys a prescriptive easement over the parkingarea and access routes were correctly dismissed for the same reason, as hostility isrequired to establish a prescriptive easement (see Taverni v Broderick, 111 AD3d 1197, 1199 [2013]; Ward v Murariu Bros., Inc.,100 AD3d 1084, 1085-1086 [2012]; Aubuchon Realty Co. v Cohen, 294AD2d 738, 739 [2002]). In light of the foregoing, we need not consider whether plaintiffhas [*3]established the other elements of her claims.
Peters, P.J., Lahtinen, Garry and Rose, JJ., concur. Ordered that the order is affirmed,with costs.