Duckworth v. Ning Fun Chiu

Appellate Division of the Supreme Court of New York

Duckworth v. Ning Fun Chiu

33 A.D.3d 583, 822 N.Y.S.2d 147

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

DecidedOctober 3, 2006

StatusPublished

Cited by17 cases

This text of 33 A.D.3d 583 (Duckworth v. Ning Fun Chiu) 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

Duckworth v. Ning Fun Chiu, 33 A.D.3d 583, 822 N.Y.S.2d 147 (N.Y. Ct. App. 2006).

Pincite

Opinion

In an action pursuant to RFAPL article 15, inter alia, for a judgment declaring that the plaintiffs have a prescriptive easement over property owned by the defendant, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Beldock, J.H.O.), entered February 17, 2005, which, after a nonjury trial, inter alia, dismissed the complaint and declared that the defendant is the sole owner of the subject property, free and clear of any claims or encumbrances by the plaintiffs.

Ordered that the judgment is affirmed, with costs.

“An easement by prescription is demonstrated by proof of the adverse, open and notorious, continuous and uninterrupted [use of the property] for the prescriptive period. Generally, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive” (J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d 548, 550 [2005] [citations and internal quotation marks omitted]; see Frumkin v Chemtop, 251 AD2d 449 [1998]; Boumis v Caetano, 140 AD2d 401, 402 [1988]). Here, even assuming the plaintiffs established that their use of the three-foot-wide concrete side yard located on the defendant’s property and adjacent to their concrete driveway was open, notorious, continuous, and [584]*584undisputed, the defendant presented ample evidence from which the trier of fact could conclude, as it did, that, during most, if not all, of the alleged prescriptive period, the plaintiffs’ use of the purported easement was not hostile but was permitted as a matter of neighborly accommodation (see Allen v Mastrianni, 2 AD3d 1023 [2003]; McNeill v Shutts, 258 AD2d 695, 696 [1999]; Frumkin v Chemtop, supra at 449-450; 2239 Hylan Blvd. Corp. v Saccheri, 188 AD2d 524, 526 [1992]; Boumis v Caetano, supra-, Susquehanna Realty Corp. v Barth, 108 AD2d 909, 909-910 [1985]). Under these circumstances, we find no basis to disturb the Supreme Court’s findings.

The plaintiffs’ remaining contentions are without merit. Crane, J.E, Spolzino, Fisher and Lunn, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action pursuant to RFAPL article 15, inter alia, for a judgment declaring that the plaintiffs have a prescriptive easement over property owned by the defendant, the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Beldock, J.H.O.), entered February 17, 2005, which, after a nonjury trial, inter alia, dismissed the complaint and declared that the defendant is the sole owner of the subject property, free and clear of any claims or encumbrances by the plaintiffs.

Ordered that the judgment is affirmed, with costs.

“An easement by prescription is demonstrated by proof of the adverse, open and notorious, continuous and uninterrupted [use of the property] for the prescriptive period. Generally, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive” (J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d 548, 550 [2005] [citations and internal quotation marks omitted]; see Frumkin v Chemtop, 251 AD2d 449 [1998]; Boumis v Caetano, 140 AD2d 401, 402 [1988]). Here, even assuming the plaintiffs established that their use of the three-foot-wide concrete side yard located on the defendant’s property and adjacent to their concrete driveway was open, notorious, continuous, and [584]*584undisputed, the defendant presented ample evidence from which the trier of fact could conclude, as it did, that, during most, if not all, of the alleged prescriptive period, the plaintiffs’ use of the purported easement was not hostile but was permitted as a matter of neighborly accommodation (see Allen v Mastrianni, 2 AD3d 1023 [2003]; McNeill v Shutts, 258 AD2d 695, 696 [1999]; Frumkin v Chemtop, supra at 449-450; 2239 Hylan Blvd. Corp. v Saccheri, 188 AD2d 524, 526 [1992]; Boumis v Caetano, supra-, Susquehanna Realty Corp. v Barth, 108 AD2d 909, 909-910 [1985]). Under these circumstances, we find no basis to disturb the Supreme Court’s findings.

The plaintiffs’ remaining contentions are without merit. Crane, J.E, Spolzino, Fisher and Lunn, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

33 A.D.3d 583, 822 N.Y.S.2d 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duckworth-v-ning-fun-chiu-nyappdiv-2006.

Opinion

Related

Cite This Page — Counsel Stack