Gold v. Huang

285 A.D.2d 580, 727 N.Y.S.2d 915, 2001 N.Y. App. Div. LEXIS 7596

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 2001
• Status: Published

Opinion

—In an action pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O’Connell, J.), dated March 28, 2000, which denied their separate motions for summary judgment and a preliminary injunction enjoining the defendant from erecting a fence.

Ordered that the order is affirmed, with costs.

The plaintiffs failed to make a prima facie showing that they obtained title to a portion of the defendant’s property by adverse possession, as their alleged possession was not open and notorious (see, Van Valkenburgh v Lutz, 304 NY 95; Village of Castleton-On-Hudson v Keller, 208 AD2d 1006; Tubolino v Drake, 178 AD2d 951; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118). Furthermore, as their alleged use of the defendant’s property was not open and notorious, the plaintiffs did not make a prima facie showing that they obtained a prescriptive easement over the property (see, Merriam v 352 W. 42nd St. Corp., 14 AD2d 383). Therefore, the Supreme Court properly denied their motion for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman v City of New York, 49 NY2d 557).

The Supreme Court properly denied the plaintiffs’ motion for a preliminary injunction enjoining the defendant from erecting a fence, as they failed to demonstrate a likelihood of success on the merits (see, CPLR 6301).

The plaintiffs’ remaining contentions are without merit. S. Miller, J. P., H. Miller, Schmidt and Cozier, JJ., concur.