D.D.R. Realty Corp. v. Library Lane Associates, LLC

16 A.D.3d 541, 790 N.Y.S.2d 886, 2005 N.Y. App. Div. LEXIS 2949

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2005
• Status: Published

Opinion

In an action for a judgment declaring that the plaintiffs have a prescriptive easement over a driveway located on the defendant’s property, the defendant appeals from a judgment of the Supreme Court, Westchester County (Friedman, J.H.O.), entered April 2, 2004, which, upon a decision of the same court dated March 18, 2004, made after a nonjury trial, is in favor of the plaintiffs and against it, inter alia, declaring that the plaintiffs and their successors in title have a right-of-way over the subject driveway.

Ordered that the judgment is affirmed, with costs.

The plaintiffs established, by clear and convincing evidence, that their use of the driveway in question was adverse, open, notorious, continuous, and uninterrupted for the prescriptive period of 10 years (see CPLR 212 [a]; RPAPL 311; Misak v Rotondi, 1 AD3d 413, 414 [2003]; Barone v Guthy, 295 AD2d 460 [2002]; Allen v Farrell, 266 AD2d 857, 858 [1999]; Coverdale v Zucker, 261 AD2d 429, 430 [1999]; Casey v Bazan, 253 AD2d 838 [1998]). The defendant failed to rebut that showing with evidence that such use was permissive (see Misak v Rotondi, supra).

The defendant’s remaining contentions are without merit. H. Miller, J.P., Crane, Spolzino and Fisher, JJ., concur.