251 CPW LLC v. 257 Central Park West, Inc.

52 A.D.3d 355, 860 N.Y.S.2d 69

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 2008
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Leland DeGrasse, J.), entered on or about July 23, 2007, which granted defendants’ motion for summary judgment and dismissed the complaint, and denied plaintiffs’ cross motion for leave to amend, unanimously affirmed, with costs.

The court properly concluded that plaintiffs have not acquired an easement in defendant 257 Inc.’s portion of the alleyway. No easement by prescription exists since there is no showing that plaintiffs’ use was hostile and adverse (see Amalgamated Dwellings, Inc. v Hillman Hous. Corp., 33 AD3d 364 [2006]; Bookchin v Maraconda, 162 AD2d 393 [1990]; see also Morales v Riley, 28 AD3d 623 [2006]). Nor may an easement be implied from plaintiffs’ preexisting use of the alleyway. Plaintiffs have failed to make a showing of reasonable necessity, a necessary element for such an easement (see Turner v Baisley, 197 AD2d 681 [1993]); use as a “mere convenience” is insufficient (id. at 682). Concur—Andrias, J.P., Friedman, Buckley, Catterson and Acosta, JJ.