| Gulati v O'Leary |
| 2015 NY Slip Op 01693 [125 AD3d 1231] |
| February 26, 2015 |
| Appellate Division, Third Department |
[*1]
| Krishan G. Gulati, as Trustee of the February 15, 2002Charlotte E. Gulati, Beekmantown, QPRT, Respondent, v Brian O'Leary et al.,Appellants. |
Schneider & Palcsik, Plattsburgh (Mark Schneider of counsel), forappellants.
Stafford Law Office, Plattsburgh (Thomas M. Murnane of counsel), forrespondent.
Rose, J. Appeal from a judgment of the Supreme Court (McGill, J.), entered June 10,2013 in Clinton County, which granted plaintiff's motion for a directed verdict.
The parties own adjoining properties on Lake Champlain in the Town ofBeekmantown, Clinton County. Plaintiff—in his individual capacity—andhis wife purchased the property now held by the February 15, 2002 Charlotte G. Gulati,Beekmantown, QPRT (hereinafter the Trust) in 1986, and the Trust rents the summercottage located on the property to seasonal tenants. In order to reach the cottage, thetenants use a driveway on the adjoining property. Defendants purchased this adjoiningproperty in 2005 and sought to stop the Trust's tenants from using the driveway,eventually erecting a fence to block access from their property to the Trust's cottage.Relying on language in the 1986 deed to plaintiff in his individual capacity and his wifegranting a right-of-way over "the usual traveled road," which mirrors the language of aneasement granted in 1937 to the original titleholders of one of the three parcelscomprising the Trust's property (hereinafter the lakefront parcel), plaintiff commencedthis action pursuant to RPAPL article 15 seeking a declaration that the property ownedby the Trust has either a deeded right-of-way over defendants' property or, in thealternative, a prescriptive easement. Defendants counterclaimed to quiet title and forejectment and intentional trespass.
After joinder of issue and discovery, plaintiff moved for summary judgment on itscauses of action to declare the existence of a right-of-way over defendants' property orfor a prescriptive easement. Defendants opposed the motion and cross-moved forsummary judgment [*2]on their counterclaims. SupremeCourt noted that the expert submissions from both parties recognized the existence oftwo rights-of-way benefitting the Trust property. Based on the competing expert opinionsas to the location of "the usual traveled road," however, the court found a triable issue offact as to whether the relevant deeded right-of-way was located on defendants' property.The court partially granted plaintiff's motion for summary judgment on his claim for adeeded right-of-way by establishing the existence of a grant of such a right-of-way fromthe lakefront parcel to the nearest public highway and first appearing in the chain of titlein 1937, finding a triable issue as to the location of this right-of-way in relation to theparties' respective properties and denying defendants' cross motion. The matter thenproceeded to a jury trial and, at the conclusion of all the evidence, plaintiff moved for adirected verdict on the prescriptive easement cause of action. Supreme Court granted themotion, leaving the question of the location of the deeded right-of-way unanswered. Thecourt then entered a judgment and defendants now appeal, arguing that the motion for adirected verdict should have been denied and that their cross motion for summaryjudgment should have been granted.[FN*]
We cannot agree with defendants' contention that their cross motion for summaryjudgment dismissing plaintiff's claim for a prescriptive easement should have beengranted. A party claiming a prescriptive easement must show, by clear and convincingevidence, that the use of the easement was open, notorious, hostile and continuous for aperiod of 10 years (see Ward vMurariu Bros., Inc., 100 AD3d 1084, 1085 [2012]; Nixon v Morris, 91 AD3d1170, 1171 [2012]; EstateCt., LLC v Schnall, 49 AD3d 1076, 1077 [2008]). Although the element ofhostility is presumed upon a showing of the other elements, where "the relationshipbetween the parties is one of neighborly cooperation and accommodation," no suchpresumption arises and, rather, permission will be inferred (Allen v Mastrianni, 2 AD3d1023, 1024 [2003]; accordTaverni v Broderick, 111 AD3d 1197, 1199 [2013]). "Generally, the question ofimplied permission is one for the factfinder to resolve" (Barra v Norfolk S. Ry. Co., 75AD3d 821, 824 [2010] [citations omitted]).
Here, the evidence submitted on the summary judgment motions indicates that aneighborly relationship existed between plaintiff, individually, the Trust's tenants anddefendants' predecessors in title. However, inasmuch as there is no evidence of expresspermission granted to use defendants' property, and the relevant parties are not "relatedby blood or part of a select group of friends," summary judgment dismissing the claimfor a prescriptive easement on the ground that plaintiff was unable to establish hostilitywas not warranted (id. at 824 [internal quotation marks and citation omitted]; see Lew Beach Co. v Carlson,77 AD3d 1127, 1129 [2010]; Barlow v Spaziani, 63 AD3d 1225, 1226-1227[2009]).
On the other hand, by the same reasoning, we must agree with defendants that themotion for a directed verdict granting plaintiff a prescriptive easement should have beendenied. Inasmuch as the evidence at trial also revealed that plaintiff, individually, theTrust's tenants and defendants' predecessors in title were neighborly in their dealingswith respect to the driveway, we cannot say that "there is no rational process by whichthe fact trier could base a finding in favor of the nonmoving party" (Gold v Di Cerbo, 41 AD3d1051, 1052 [2007], lv denied 9 NY3d [*3]811 [2007], quoting Szczerbiak v Pilat, 90 NY2d553, 556 [1997]; see CPLR 4401).
Although defendants also contend that they were entitled to summary judgmentdismissing plaintiff's request for a declaration of a deeded right-of-way, their own expertrecognizes the existence of such an easement, but opines that it is not located ondefendants' property. Based on the competing expert opinions as to whether theright-of-way is located on defendants' property, triable issues of fact exist as to itslocation (see Kennedy vNimons, 121 AD3d 1229, 1231 [2014]; Gholizadeh v Keifer, 66 AD3d 1209, 1210-1211 [2009]).Defendants' remaining contentions have been considered and determined to beunavailing.
Peters, P.J., Egan Jr. and Clark, JJ., concur. Ordered that the judgment is reversed, onthe law, with costs, motion denied and matter remitted to the Supreme Court for a newtrial.
Footnote *:Although plaintiffargues that defendants did not appeal the order that determined the motions for summaryjudgment, their appeal from the final judgment brings that order up for review(see CPLR 5501 [a] [1]; Windsearch, Inc. v Delafrange, 90 AD3d 1223, 1223 n 1[2011]).