Barone v. Guthy

295 A.D.2d 460, 744 N.Y.S.2d 673, 2002 N.Y. App. Div. LEXIS 6427

Opinion

—In an action, inter alia, for a judgment declaring that the plaintiff has a prescriptive easement over a disputed portion of driveway, the defendant appeals from a judgment of the Supreme Court, Orange County (Byrne, J.), entered February 16, 2001, which, inter alia, after a non-jury trial, is in favor of the plaintiff and against her on the second cause of action, declaring that the plaintiff has a prescriptive easement over the disputed portion of the subject driveway.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly determined that the plaintiff is entitled to a prescriptive easement over the disputed portion of driveway because she presented sufficient evidence to establish that the use by her and her tenants of the portion of the driveway was adverse, open, notorious, continued, and uninterrupted for the prescriptive period of 10 years (see Coverdale v Zucker, 261 AD2d 429, 430). The defendant failed to offer evidence proving that such use was permissive.

The defendant’s contention that the testimony of the plaintiff’s witness constituted inadmissible hearsay is without merit. The testimony was offered to demonstrate state of mind and not for its truth (see Garsten v MacMurray, 133 AD2d 442). Feuerstein, J.P., Schmidt, Adams and Crane, JJ., concur.