Gold v. Di Cerbo, 41 A.D.3d 1051 (N.Y. App. Div. 2007). · Go Syfert
Gold v. Di Cerbo, 41 A.D.3d 1051 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
16 citation events (16 in the last 25 years) across 1 distinct court.
Strongest positive: Bly Hollow LLC v. Council (nyappdiv, 2025-12-11)
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) Bly Hollow LLC v. Council
N.Y. App. Div. · 2025 · confidence medium
Pertinent here, " 'an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion for [the prescriptive period]' " ( Gold v Di Cerbo , 41 AD3d 1051, 1054 [3d Dept 2007], lv denied 9 NY3d 811 [2007], quoting Spiegel v Ferraro , 73 NY2d 622, 626 [1989]).
discussed Cited as authority (rule) Sammy Props., Inc. v. Al Saleh Assoc., LLC
N.Y. App. Div. · 2024 · confidence medium
Since the record demonstrated that ASA had not adversely possessed the easement by effectively excluding the plaintiff's predecessors for the prescriptive period ( see Gold v Di Cerbo , 41 AD3d at 1054; McGinley v Postel , 37 AD3d at 784 ), the Supreme Court properly granted those branches of the plaintiff's motion which were for summary judgment on the causes of action for declaratory relief and for a permanent injunction enjoining ASA from interfering with the plaintiff's use of the easement.
discussed Cited as authority (rule) Miller v. Carter
N.Y. App. Div. · 2023 · confidence medium
Defendants appeal. [FN1] "We begin by noting that a directed verdict is appropriate when, upon the evidence presented, there is no rational process by which the fact trier could base a finding [*2]in favor of the nonmoving party" ( Gold v Di Cerbo , 41 AD3d 1051, 1052 [3d Dept 2007] [internal quotation marks and citation omitted], lv denied 9 NY3d 811 [2007]; see Majid v Cheon-Lee , 147 AD3d 66, 68-69 [3d Dept 2016]).
discussed Cited as authority (rule) Gale v. Town of Wilton
N.Y. App. Div. · 2021 · confidence medium
"The nonuse of an easement, even of substantial duration, will not establish a claim for abandonment and acts evincing an intention to abandon must be unequivocal" ( Gold v Di Cerbo , 41 AD3d 1051, 1053 [2007] [internal quotation marks and citations omitted], lv denied 9 NY3d 811 [2007]).
discussed Cited as authority (rule) Ferguson v. Hart
N.Y. App. Div. · 2017 · confidence medium
These two requisite elements cannot be conflated, and it is well-settled that “abandonment does not result from nonuse alone, no matter how long, inasmuch as owners are not required to make use of their property” (Janoff v Disick, 66 AD3d at 966 ; see Gerbig v Zumpano, 7 NY2d 327, 331 [1960]; *1244 Gold v Di Cerbo, 41 AD3d 1051, 1053 [2007], lv denied 9 NY3d 811 [2007]).
discussed Cited as authority (rule) Gulati v. O'Leary
N.Y. App. Div. · 2015 · confidence medium
Inasmuch as the evidence at trial also revealed that plaintiff, individually, the Trust’s tenants and defendants’ predecessors in title were neighborly in their dealings with respect to the driveway, we cannot say that “there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Gold v Di Cerbo, 41 AD3d 1051, 1052 [2007], lv denied 9 NY3d 811 [2007], quoting Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see CPLR 4401).
discussed Cited as authority (rule) Plattekill Mountain Ski Chalet, LLC v. Ski Plattekill, Inc.
N.Y. App. Div. · 2012 · confidence medium
In order to extinguish an easement by adverse possession, the dominant owner must be prevented from using the easement for the statutory time period (see Spiegel v Ferraro, 73 NY2d 622, 627-628 [1989]; Gold v Di Cerbo, 41 AD3d 1051, 1054 [2007], lv denied 9 NY3d 811 [2007]).
discussed Cited as authority (rule) Plattekill Mountain Ski Chalet, LLC v. Ski Plattekill, Inc.
N.Y. App. Div. · 2012 · confidence medium
In order to extinguish an easement by adverse possession, the dominant owner must be prevented from using the easement for the statutory time period (see Spiegel v Ferraro, 73 NY2d 622, 627-628 [1989]; Gold v Di Cerbo, 41 AD3d 1051, 1054 [2007], lv denied 9 NY3d 811 [2007]).
discussed Cited as authority (rule) Dutcher v. Allen
N.Y. App. Div. · 2012 · confidence medium
Nonuse, alone, does not constitute abandonment; the party asserting abandonment must show an intention to abandon the easement, as demonstrated by an overt act or failure to act that implies that the owner does not claim any interest in the easement (see Janoff v Disick, 66 AD3d at 966 ; Gold v Di Cerbo, 41 AD3d 1051, 1053 [2007], lv denied 9 NY3d 811 [2007]).
discussed Cited as authority (rule) Hytko v. Hennessey
N.Y. App. Div. · 2009 · confidence medium
A directed verdict pursuant to CPLR 4401 is appropriate when, viewing the evidence in a light most favorable to the nonmoving party and affording such party the benefit of every inference, there is no rational process by which a jury could find in favor of the nonmovant (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Gold v Di Cerbo, 41 AD3d 1051, 1052-1053 [2007], lv denied 9 NY3d 811 [2007]; Ciocca v Park, 21 AD3d 671, 672 [2005], affd 5 NY3d 835 [2005]).
discussed Cited "see" Kopp v. Rhino Room, Inc.
N.Y. App. Div. · 2021 · signal: see · confidence high
Thus, "an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion for [the prescriptive period]" ( id . at 626 [internal quotation marks omitted]; see Gold v Di Cerbo , 41 AD3d 1051, 1054 [3d Dept 2007], lv denied 9 NY3d 811 [2007]; Zeledon v MacGillivray , 263 AD2d 904, 905 [3d Dept 1999]).
discussed Cited "see" In re the Estate of Corcoran
N.Y. App. Div. · 2009 · signal: see · confidence high
Mindful that a CPLR 4401 motion for judgment as a matter of law may be granted only when, viewing the evidence in a light most favorable to the nonmoving party and according him or her the benefit of every favorable inference which can be drawn, “there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]; see Gold v Di Cerbo, 41 AD3d 1051, 1052 [2007], lv denied 9 NY3d 811 [2007]), we find that it was error for Surrogate’s Court to grant the motion in favor of respondent on this account.
discussed Cited "see, e.g." CJA Realty Holdings, LP v. 14 Phila St. LLC
N.Y. App. Div. · 2022 · signal: compare · confidence medium
In short, defendants made a prima facie showing that their predecessors' use of the disputed portion of the easement was actual, open, notorious, exclusive and continuous for the prescriptive period ( see Spiegel v Ferraro , 73 NY2d at 627-628 ; compare Gold v Di Cerbo , 41 AD3d 1051, 1054 [2007], lv denied 9 NY3d 811 [2007]).
discussed Cited "see, e.g." EPG Assoc., LP v. Cascadilla Sch.
N.Y. App. Div. · 2021 · signal: compare · confidence medium
Thus, based on the foregoing, we agree with Supreme Court that the Cheungs met their initial burden of establishing their entitlement to title of the parking area by adverse possession ( see Spiegel v Ferraro , 73 NY2d 622, 627-628 [1989]; Zeledon v MacGillivray , 263 AD2d 904, 905 [1999]; compare Gold v Di Cerbo , 41 AD3d 1051, 1054 [2007], lv denied 9 NY3d 811 [2007]).
Retrieving the full opinion text from the archive…
Nancy E. Gold
v.
Patrick A. Di Cerbo
Appellate Division of the Supreme Court of the State of New York.
Jun 21, 2007.
41 A.D.3d 1051
Carpinello.
Cited by 14 opinions  |  Published
Carpinello, J.

Appeal from an order and judgment of the Supreme Court (Aulisi, J.), entered April 28, 2006 in Schenectady County, upon a dismissal of the complaint at the close of plaintiffs case.

At issue is an easement running across plaintiffs property connecting defendant’s property with Route 7 in the Town of Niskayuna, Schenectady County. The easement, created in 1911, consists of a gravel road and a bridge.[1] When plaintiff and her late husband acquired their property in 1981, they knew that their deed excepted this easement but nevertheless believed that it had been abandoned. In 1998, defendant acquired his property from Carol Majkut and approximately four years later, after obtaining all necessary permits, rebuilt the bridge along the easement and upgraded the road itself.

Well over a year after defendant completed this project, plaintiff commenced this action alleging that the easement had been extinguished by abandonment and/or adverse possession. She sought removal of the new bridge and repair to her property caused by its construction. The matter eventually proceeded to trial. At the conclusion of plaintiff’s case, defendant was granted a directed verdict and the complaint was dismissed in its entirety. This appeal ensued.

We begin by noting that a directed verdict is appropriate when, “upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Moreover, “the moving party has the burden of showing that, upon viewing the evidence in the light most favorable to the [nonmoving party] and affording the [nonmoving party] the benefit of every inference which may properly be drawn from the facts, the [nonmoving party] has not made[*1053] out a prima facie case” (Holy Temple First Church of God in Christ v City of Hudson, 17 AD3d 947, 947 [2005]; accord Ciocca v Park, 21 AD3d 671, 672 [2005], affd 5 NY3d 835 [2005]). Applying these principles to the instant case, we are satisfied that a directed verdict was properly awarded to defendant.

It has long been recognized that an easement created by grant, such as the easement at issue here, may be extinguished by abandonment or adverse possession (see Gerbig v Zumpano, 7 NY2d 327, 330 [1960]). In order to prevail on her claim of extinguishment by abandonment, plaintiff was required to establish by clear and convincing evidence “both an intention to abandon [by Majkut] and also some overt act or failure to act which carries the implication that [Majkut] neither claims nor retains any interest in the easement” (id. at 331; see Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 39 [1986]; Navin v Mosquera, 26 AD3d 556, 557 [2006]; B.J. 96 Corp. v Mester, 222 AD2d 798, 800 [1995]). The nonuse of an easement, even of substantial duration, will not establish a claim for abandonment (see Gerbig v Zumpano, supra at 331) and “acts evincing an intention to abandon must be unequivocal” (id.; B.J. 96 Corp. v Mester, supra).

Here, viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every inference, she failed to make a prima facie showing of an intent to abandon by Majkut. In so finding, we are compelled to point out that plaintiffs proof in the case included the testimony of Majkut herself. According to Majkut, after purchasing her property in 1978, the subject easement was her only access to a public road. By the time the subject bridge fell into disrepair in the early 1980s, however, she had access to another public road via another bridge (also in disrepair) and opted to fix this second bridge because it was less expensive to do so.

Furthermore, according to Majkut, even after the bridge along her easement was no longer passable for vehicle and pedestrian traffic, she and her family continued to use the easement to gain access to Route 7 by foot. Furthermore, and most notably, Majkut unequivocally testified that she never renounced or gave up her right to use the easement. In the face of this unrefuted testimony by plaintiffs own witness, plaintiff failed to present a prima facie case of abandonment such that Supreme Court properly granted defendant a directed verdict on this issue.[*1054] Plaintiffs attempt to discredit her own witness in an effort to revive the abandonment claim is unpersuasive.[2]

Next, in order to extinguish an easement by adverse possession, a party is required to “establish that the use of the easement has been adverse to the owner of the easement, under a claim of right, open and notorious, exclusive and continuous for a period of 10 years” (Spiegel v Ferraro, 73 NY2d 622, 625 [1989]). Thus, “an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion for [the prescriptive period]” (id. at 626 [internal quotation marks and citation omitted]). Here, again viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every inference, she' failed to establish extinguishment of the easement by adverse possession.

While plaintiff and her family used the easement to hike, take nature walks and cross-country ski, and while they also planted and mowed near it, such uses were not inconsistent with the easement itself or adverse to Majkut (defendant’s predecessor in interest during the relevant 10-year time period). In other words, these uses did not constitute a use of the easement to the exclusion of all others nor did they in any way interfere with Majkut’s use and enjoyment of the easement. Moreover, plaintiff did not submit proof that she installed some type of physical barrier or obstruction to prevent others, particularly Majkut, from using the easement during the entire prescriptive period (compare id.; McGinley v Postel, 37 AD3d 783, 784 [2007]; Zeledon v MacGillivray, 263 AD2d 904, 905 [1999]; see generally Filby v Brooks, 66 NY2d 640, 641 [1985]; Welsh v Taylor, 134 NY 450, 458 [1892]). Thus, plaintiff failed to present prima facie proof that she effectively interfered with the use and enjoyment of the easement by Majkut such that a directed verdict was properly granted to defendant on this issue as well. Additionally, fully crediting plaintiffs proof, it does not establish that she usually cultivated or improved the easement (see Winchell v Caron, 260 AD2d 888, 889 [1999]).

Crew III, J.P., Spain, Mugglin and Kane, JJ., concur. Ordered that the order and judgment is affirmed, without costs.

1

The bridge fell into disrepair in the late 1980s and was ultimately dismantled in 1996 or 1997 by defendant’s immediate predecessor in interest, Carol Majkut.

2

Additionally, fully crediting plaintiffs proof, the acts relied upon as evidence of an intent to abandon, such as Majkut’s decisions to relocate her mailbox and to dismantle the bridge in the 1990s, were not “unequivocal [acts] . . . clearly demonstrating] the permanent relinquishment of all right to the easement” (Gerbig v Zumpano, supra at 331; see Navin v Mosquera, supra; Clausi v Meddaugh, 121 AD2d 841 [1986]).