Gold v. Berkowitz

235 A.D.2d 455, 652 N.Y.S.2d 992, 1997 N.Y. App. Div. LEXIS 417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1997
• Status: Published

Opinion

In an action for a judgment declaring that the plaintiffs have a prescriptive easement over property owned by the defendants, the defendants appeal from an order of the Supreme Court, Kings County (Shaw, J.), dated January 11, 1996, which granted the plaintiffs’ motion for a preliminary injunction and denied their cross motion for summary judgment.

Ordered that the order is modified by deleting the provision granting the plaintiffs’ motion for a preliminary injunction and substituting therefor a provision denying the plaintiffs’ motion for a preliminary injunction; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs assert an easement over a portion of the defendants’ property adjacent to their own in order to access a piazza on their property. The plaintiffs allege that they and/or their tenants have been continuously using the defendants’ property for the prescriptive period. The defendants contend that the use has been intermittent, not continuous. The defendants further contend that any use was permissive. Accordingly, triable issues of fact exist, which preclude the granting of summary judgment (see, Rogers v Holmes, 217 AD2d 609).

Furthermore, the preliminary injunction was improperly granted, since the plaintiffs’ likelihood of success is uncertain and there has been no showing of irreparable harm (see, Aetna Ins. Co. v Capasso, 75 NY2d 860; Van Deusen v McManus, 202 AD2d 731). Miller, J. P., Santucci, Joy and Florio, JJ., concur.