Joy Builders, Inc. v. Shapiro

57 A.D.3d 486, 869 N.Y.2d 168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 2008
• Status: Published

Opinion

The plaintiff claims, inter alia, that it has an easement by implication over a paper road that crosses the defendants’ property, in order to access an intersecting public road. It was incumbent upon the plaintiff to make a prima facie showing, by clear and convincing evidence, that it was the intent of the original grantor, at the time of the original conveyance, to create the subject easement (see H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d 652, 654 [2007]; Michalski v Decker, 16 AD3d 469, 470 [2005]; Asche v Land & Bldg. Known as 64-29 232nd St., 12 AD3d 386, 387 [2004]; Palma v Mastroianni, 276 AD2d 894, 894 [2000]). The plaintiff failed to make that showing. Accordingly, its renewed motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

In light of the foregoing, we need not address the parties’ remaining contentions. Ritter, J.P., Florio, Miller and Dillon, JJ., concur.