prescriptive easement claim in New York

2020To prevail on a prescriptive easement claim, a plaintiff must show that "the use of the servient property was open, notorious, continuous, hostile and under a claim of right for the requisite 10-year period;" [FN2] proof of the other elements "generally gives rise to a presumption that the use was hostile and under a claim of right, shifting the burden of proof to the servient property owner to show that the use was permissive" ( Allen v Mastrianni , 2 AD3d 1023, 1024 [2003]; see Rosenzweig v Howlan , 166 AD3d 1146 , 1148 [2018]; Barra v Norfolk S. Ry.

2012Given the evidence of neighborly accommodation, plaintiffs testimony admitting that he was given express permission to use the driveway, and the absence of any proof to contradict those statements, Supreme Court properly granted partial summary judgment to defendant dismissing the prescriptive easement claim (see Alexander v Oakley, 95 AD3d at 1392 ; Allen v Mastrianni, 2 AD3d at 1024 ; see also Nixon v Morris, 91 AD3d 1170, 1172 [2012]).

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2013Additionally, although plaintiffs’ motion seeking leave to amend the complaint refers only to an adverse possession cause of action, we would not read the proposed amendment so narrowly as to foreclose a prescriptive easement claim inasmuch as “[p]leadings shall be liberally construed” and “[d]efects shall be ignored if a substantial right of a party is not prejudiced” (CPLR 3026; see generally Angie v Johns Manville Corp., 94 AD2d 939, 940 [1983]).

2013Additionally, although plaintiffs’ motion seeking leave to amend the complaint refers only to an adverse possession cause of action, we would not read the proposed amendment so narrowly as to foreclose a prescriptive easement claim inasmuch as “[p]leadings shall be liberally construed” and “[d]efects shall be ignored if a substantial right of a party is not prejudiced” (CPLR 3026; see generally Angie v Johns Manville Corp., 94 AD2d 939, 940 [1983]).

2020Co. , 75 AD3d at 823 ; Cole v Rothe , 18 AD3d 1058, 1059 [2005]). [FN3] "However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise" ( Schwengber v Hultenius , 160 AD3d 1083 , 1084 [2018] [internal quotation marks and citations omitted]; see Gulati v O'Leary , 125 AD3d 1231, 1233 [2015]; Allen v Mastrianni , 2 AD3d at 1024 ). [FN4] "Generally, the question of implied permission is one for the factfinder to resolve" ( Barra v Norfolk S. Ry.

2018"To succeed on a prescriptive easement claim, a party must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period" ( Rundberg v Rundber g, 140 AD3d 1461, 1462 [2016] [internal quotation marks and citations omitted], lv denied 29 NY3d 902 [2017]; see Gulati v O'Leary , 125 AD3d 1231, 1233 [2015]).

2018Similarly, to establish a prescriptive easement claim, a party's use must be "adverse, open and notorious, continuous and uninterrupted for [at least 10 years]" ( Di Leo v Pecksto Holding Corp. , 304 NY 505, 512 [1952]; see Schwengber v Hultenius , 160 AD3d 1083 , 1084 [2018]).

2018"Under ordinary circumstances, an open, notorious, uninterrupted and undisputed use of a right of way is presumed to be adverse under claim of right and casts the burden upon the owner of the servient tenement to show that the use[] was by license" ( Di Leo v Pecksto Holding Corp. , 304 NY at 512 [internal quotation marks and citations omitted]) or was permissive ( see Barlow v Spaziani , 63 AD3d 1225, 1226 [2009]; Allen v Mastrianni , 2 AD3d 1023, 1024 [2003]).

2012Air Stream’s contention that Lawson never obtained an easement by grant over the Air Stream strip is belied by the record. “ ‘[A] grantor cannot create an easement benefitting land not owned by the grantor’ at the time of the grant” (Sachar v East 53 Realty, LLC, 63 AD3d 715, 715 [2009], quoting Beachside Bungalow Preserv.

2012Air Stream’s contention that Lawson never obtained an easement by grant over the Air Stream strip is belied by the record. “ ‘[A] grantor cannot create an easement benefitting land not owned by the grantor’ at the time of the grant” (Sachar v East 53 Realty, LLC, 63 AD3d 715, 715 [2009], quoting Beachside Bungalow Preserv.

2012Because the proponent of a prescriptive easement claim must also establish hostility, Air Stream similarly did not acquire a prescriptive easement with respect to that property (see Almeida v Wells, 74 AD3d 1256, 1259 [2010]; Sadowski v Taylor, 56 AD3d 991 , 994 [2008]).

2012Because the proponent of a prescriptive easement claim must also establish hostility, Air Stream similarly did not acquire a prescriptive easement with respect to that property (see Almeida v Wells, 74 AD3d 1256, 1259 [2010]; Sadowski v Taylor, 56 AD3d 991 , 994 [2008]).

2012Given the evidence of neighborly accommodation, plaintiffs testimony admitting that he was given express permission to use the driveway, and the absence of any proof to contradict those statements, Supreme Court properly granted partial summary judgment to defendant dismissing the prescriptive easement claim (see Alexander v Oakley, 95 AD3d at 1392 ; Allen v Mastrianni, 2 AD3d at 1024 ; see also Nixon v Morris, 91 AD3d 1170, 1172 [2012]).

2012Given the evidence of neighborly accommodation, plaintiffs testimony admitting that he was given express permission to use the driveway, and the absence of any proof to contradict those statements, Supreme Court properly granted partial summary judgment to defendant dismissing the prescriptive easement claim (see Alexander v Oakley, 95 AD3d at 1392 ; Allen v Mastrianni, 2 AD3d at 1024 ; see also Nixon v Morris, 91 AD3d 1170, 1172 [2012]).

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

1993Undoubtedly, the proponent of a prescriptive easement claim bears the burden of proving, by clear and convincing evidence, hostile, open, notorious and continuous use over the other’s land for the prescriptive period (see, e.g., Hamilton v Kennedy, 168 AD2d 717 , lv denied 77 NY2d 808 ; Kusmierz v Baan, 144 AD2d 829 ; Susquehanna Realty Corp. v Barth, 108 AD2d 909 ).

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2010Weir v Gibbs, 46 AD3d at 1193 ; Duckworth v Ning Fun Chiu, 33 AD3d 583 [2006]; McNeill v Shutts, 258 AD2d at 695-696 ; Sleasman v Williams, 187 AD2d at 852-853 ; Susquehanna Realty Corp. v Barth, 108 AD2d at 909-910 ; Hassinger v Kline, 91 AD2d 988 [1983]; Jansen v Sawling, 37 AD2d at 635 ).

2023Plaintiff documented how Kilmer did not share that view, in fact, as she testified that Kilmer asked for permission to use Griffin Road when he logged defendant's property in 1996 and placed the letter in which Kilmer made that request into evidence. [FN2] Although "[t]he adverse use need not be on a daily basis [for it to be continuous for purposes of a prescriptive easement claim], . . . it must be such that an owner of the land would or should recognize a hostile claim is asserted," and the foregoing proof of sporadic adverse use by McGowan and permissive use by Kilmer during the period tha

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2020Co. , 75 AD3d at 823 ; Cole v Rothe , 18 AD3d 1058, 1059 [2005]). [FN3] "However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise" ( Schwengber v Hultenius , 160 AD3d 1083 , 1084 [2018] [internal quotation marks and citations omitted]; see Gulati v O'Leary , 125 AD3d 1231, 1233 [2015]; Allen v Mastrianni , 2 AD3d at 1024 ). [FN4] "Generally, the question of implied permission is one for the factfinder to resolve" ( Barra v Norfolk S. Ry.

2020Co. , 75 AD3d at 825 ; Barlow v Spaziani , 63 AD3d 1225, 1227 [2009]).

2024Upon cross-appeals therefrom, we affirmed, finding, as to the prescriptive easement claim, that the evidence proffered at that stage of the proceedings established that plaintiffs' use of the alley "was open, notorious and continuous for more than the required 10-year period," but questions of fact remained as to whether said use was hostile or permissive ( 180 AD3d 1276, 1280-1281 [3d Dept 2020]).

2024We also found that questions of fact existed as to whether an easement by implication was created by the common grantor's subdivision of the subject properties and, if so, whether it had been subsequently extinguished, as plaintiffs failed to establish a complete chain of title ( id. at 1278-1279 ).

2020Co. , 75 AD3d at 823 ; Cole v Rothe , 18 AD3d 1058, 1059 [2005]). [FN3] "However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise" ( Schwengber v Hultenius , 160 AD3d 1083 , 1084 [2018] [internal quotation marks and citations omitted]; see Gulati v O'Leary , 125 AD3d 1231, 1233 [2015]; Allen v Mastrianni , 2 AD3d at 1024 ). [FN4] "Generally, the question of implied permission is one for the factfinder to resolve" ( Barra v Norfolk S. Ry.

2018"To succeed on a prescriptive easement claim, a party must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period" ( Rundberg v Rundber g, 140 AD3d 1461, 1462 [2016] [internal quotation marks and citations omitted], lv denied 29 NY3d 902 [2017]; see Gulati v O'Leary , 125 AD3d 1231, 1233 [2015]).

2010Corp., 271 NY 376, 380 [1936]). .

2010Passenger Corp., 6 NY3d 172, 178-179 [2006]; Barlow v Spaziani, 63 AD3d at 1227 ) and, therefore, the vast majority of appellate cases addressing this issue in the context of a prescriptive easement claim have done so on appeals following trials (see e.g.

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2010To succeed on a prescriptive easement claim, a plaintiff must show that the use of the servient property was open, notorious, continuous and hostile for the prescriptive period; once the other elements of the claim are established, hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226 ; Weir v Gibbs, 46 AD3d 1192, 1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]). 3 In this regard, permission may be inferred where the relationship between the dominant and servient estates evinced “nei

2010Weir v Gibbs, 46 AD3d at 1193 ; Duckworth v Ning Fun Chiu, 33 AD3d 583 [2006]; McNeill v Shutts, 258 AD2d at 695-696 ; Sleasman v Williams, 187 AD2d at 852-853 ; Susquehanna Realty Corp. v Barth, 108 AD2d at 909-910 ; Hassinger v Kline, 91 AD2d 988 [1983]; Jansen v Sawling, 37 AD2d at 635 ).

2008Conservation, 193 AD2d 856, 859 [1993], lv denied 82 NY2d 656 [1993]; see Allen v Mastrianni, 2 AD3d 1023, 1024 [2003]; Gorman v Hess, 301 AD2d 683, 685 [2003]; see also Di Leo v Pecksto Holding Corp., 304 NY 505, 510-512 [1952]).

2008Conservation, 193 AD2d 856, 859 [1993], lv denied 82 NY2d 656 [1993]; see Allen v Mastrianni, 2 AD3d 1023, 1024 [2003]; Gorman v Hess, 301 AD2d 683, 685 [2003]; see also Di Leo v Pecksto Holding Corp., 304 NY 505, 510-512 [1952]).

1993Undoubtedly, the proponent of a prescriptive easement claim bears the burden of proving, by clear and convincing evidence, hostile, open, notorious and continuous use over the other’s land for the prescriptive period (see, e.g., Hamilton v Kennedy, 168 AD2d 717 , lv denied 77 NY2d 808 ; Kusmierz v Baan, 144 AD2d 829 ; Susquehanna Realty Corp. v Barth, 108 AD2d 909 ).

1993While, in general, proof of open, notorious, continuous and undisputed use gives rise to a presumption that the use was hostile and shifts to the opponent the burden of coming forward with evidence that the use was permissive or by license (see, e.g., Kusmierz v Baan, supra, at 830), in situations where it is shown that the user and the landowner are related by blood or part of a select group of friends, the proponent is not accorded the benefit of the presumption and must present affirmative facts to support the conclusion that his or her use was under a claim of right and adverse to the inte