Casey v. Bazan

Appellate Division of the Supreme Court of New York

Casey v. Bazan

253 A.D.2d 838, 678 N.Y.S.2d 371, 1998 N.Y. App. Div. LEXIS 9819

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 28, 1998

StatusPublished

Cited by5 cases

This text of 253 A.D.2d 838 (Casey v. Bazan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Casey v. Bazan, 253 A.D.2d 838, 678 N.Y.S.2d 371, 1998 N.Y. App. Div. LEXIS 9819 (N.Y. Ct. App. 1998).

Pincite

Opinion

In an action for a permanent injunction in the form of a prescriptive easement, the defendants appeal from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 17, 1997, which, after a nonjury trial, granted the permanent injunction.

Ordered that the judgment is affirmed, with costs.

The burden of proving all the elements of a prescriptive easement is on the person who asserts the claim. Once the claimant has shown, by clear and convincing evidence, that the subject property was used openly, notoriously, and continuously for the statutory period, the presumption arises that the use was adverse and the burden shifts to the owner of the property to rebut the presumption by showing that the use was permissive (see, Katona v Low, 226 AD2d 433; 2 NY Jur 2d, Adverse Possession, § 7; Nazarian v Pascale, 225 AD2d 381, 383). Here, the plaintiff established that since 1941, her family had openly used a portion of the neighboring back yard as a [839]*839place to turn their car around in order to enter the garage at the rear of their house. The defendants failed to sustain their burden of showing that the use was permitted by their predecessors in title.

The defendants’ remaining contention is without merit. Bracken, J. P., Thompson, Pizzuto and Altman, JJ., concur.

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In an action for a permanent injunction in the form of a prescriptive easement, the defendants appeal from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 17, 1997, which, after a nonjury trial, granted the permanent injunction.

Ordered that the judgment is affirmed, with costs.

The burden of proving all the elements of a prescriptive easement is on the person who asserts the claim. Once the claimant has shown, by clear and convincing evidence, that the subject property was used openly, notoriously, and continuously for the statutory period, the presumption arises that the use was adverse and the burden shifts to the owner of the property to rebut the presumption by showing that the use was permissive (see, Katona v Low, 226 AD2d 433; 2 NY Jur 2d, Adverse Possession, § 7; Nazarian v Pascale, 225 AD2d 381, 383). Here, the plaintiff established that since 1941, her family had openly used a portion of the neighboring back yard as a [839]*839place to turn their car around in order to enter the garage at the rear of their house. The defendants failed to sustain their burden of showing that the use was permitted by their predecessors in title.

The defendants’ remaining contention is without merit. Bracken, J. P., Thompson, Pizzuto and Altman, JJ., concur.

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Bluebook (online)

253 A.D.2d 838, 678 N.Y.S.2d 371, 1998 N.Y. App. Div. LEXIS 9819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-v-bazan-nyappdiv-1998.

Opinion

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