Opinion
Noa. 2022-00091 2023-06522 Index No. 52652/16
05-29-2024
Dean L. Bloch, etc., et al., respondents, v. Casella Wood, LLC, etc., et al., appellants.
McCabe & Mack, LLP, Poughkeepsie, NY (Richard R. DuVall of counsel), for appellants. John Greco (Hasapidis Law Offices, South Salem, NY [Annette G. Hasapidis], of counsel), for respondents.
McCabe & Mack, LLP, Poughkeepsie, NY (Richard R. DuVall of counsel), for appellants.
John Greco (Hasapidis Law Offices, South Salem, NY [Annette G. Hasapidis], of counsel), for respondents.
FRANCESCA E. CONNOLLY, J.P., VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action for declaratory and injunctive relief, the defendants appeal from (1) a decision of the Supreme Court, Dutchess County (Hal B. Greenwald, J.), dated December 14, 2021, and (2) a judgment of the same court (Thomas Ritchie Davis, J.), dated June 29, 2023. The judgment, insofar as appealed from, upon the decision, made after a nonjury trial, declared that the plaintiffs have a prescriptive easement over a driveway that runs through the property of the defendant Casella Wood, LLC, and enjoined the defendants from interfering with the plaintiffs' use of the driveway.
ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 A.D.2d 509); and it is further, ORDERED that the judgment is reversed insofar as appealed from, on the facts, the cause of action to enjoin the defendants from interfering with the plaintiffs' use of the driveway is dismissed, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of an appropriate amended judgment, inter alia, declaring that the plaintiffs do not have a right to use the driveway that runs through the property of the defendant Casella Wood, LLC, and the defendants have the right to exclude the plaintiffs from the driveway; and it is further, ORDERED that one bill of costs is awarded to the defendants.
In November 1991 or the spring of 1992, the plaintiff Dean L. Bloch purchased property located in Barrytown, which he later conveyed to both himself and his wife, the plaintiff Gale Wolfe. The Hudson River borders the western side of the property, and the rest of the property is surrounded by property that was owned by Unification Theological Seminary (hereinafter UTS). The plaintiffs' deed for the property included a right-of-way that abutted the property to the east and extended south to local roads.
The plaintiffs did not utilize the portion of the right-of-way that abutted their property for ingress and egress. Instead, the plaintiffs used a driveway that ran south through the southern boundary of their property, bisected UTS's property, and joined the right-of-way near the southern portion of UTS's property.
In 2014, the defendant Casella Wood, LLC, which is associated with the defendants Marirose Blum Bump and Robert Bump, purchased UTS's property. In June 2016, the defendants blocked the plaintiffs' access to the driveway.
In November 2016, the plaintiffs commenced this action, seeking, inter alia, a judgment declaring that they have a prescriptive easement over the driveway and a permanent injunction enjoining the defendants from interfering with their use of the driveway. The defendants interposed an answer and asserted a counterclaim for a judgment declaring that the plaintiffs do not have a right to use the driveway and the defendants have the right to exclude the plaintiffs from the driveway.
After a nonjury trial, the Supreme Court issued a judgment, among other things, declaring that the plaintiffs have a prescriptive easement over the driveway and enjoining the defendants from interfering with the plaintiffs' use of the driveway. The defendants appeal.
"In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds 'warranted by the facts,' bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses" (McGowan v State of New York, 79 A.D.3d 984, 986, quoting Northern Westchester Professional Park Assoc. v Town of Bedford, 60 N.Y.2d 492, 499; see Castaldi v Syosset Cent. Sch. Dist., 203 A.D.3d 690, 692).
"To acquire an easement by adverse possession or an easement by prescription, 'it must be shown that the use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years'" (Isnady v Walden Preserv., L.P., 208 A.D.3d 568, 570, quoting Panday v Allen, 187 A.D.3d 775, 777; see Kuzmicki v Bentley Yacht Club, 193 A.D.3d 710, 711). "The elements of a prescriptive easement must be established by clear and convincing evidence" (Panday v Allen, 187 A.D.3d at 777 [internal quotation marks omitted]; see Bolognese v Bantis, 215 A.D.3d 616, 619; Almeida v Wells, 74 A.D.3d 1256, 1258).
"'When the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner'" (Bratone v Conforti-Brown, 150 A.D.3d 1068, 1071, quoting Hinkley v State of New York, 234 NY 309, 316). "Such permission can be express or implied and 'if the first possession is by permission it is presumed to so continue until the contrary appears'" (Bratone v Conforti-Brown, 150 A.D.3d at 1071 [citations omitted], quoting Hinkley v State of New York, 234 NY at 317). Further, "hostility will be found lacking where use of the disputed property was 'permitted as a matter of [willing accord and] neighborly accommodation'" (Bolognese v Bantis, 215 A.D.3d at 620, quoting Ryan v Posner, 68 A.D.3d 963, 965; see MJK Bldg. Corp. v Fayland Realty, Inc., 181 A.D.3d 860, 862).
The plaintiffs contend that a map created in 1974, which indicates the presence of the driveway, established that their use of the driveway was open and notorious and continuous after 1974, and entitles them to a presumption of hostility (see Bratone v Conforti-Brown, 150 A.D.3d at 1070). However, the plaintiffs presented no evidence about the use of the driveway from 1974 to when Bloch initially purchased the plaintiffs' property in November 1991 or the spring of 1992. Accordingly, the plaintiffs failed to demonstrate their entitlement to a prescriptive easement based on any 10-year period during that time interval.
The plaintiffs presented evidence establishing that they began using the driveway openly and notoriously and continuously starting in November 1991 or the spring of 1992. However, the trial evidence also demonstrated that, prior to this use of the driveway for a period of 10 years, UTS gave permission to the plaintiffs to use the driveway in a letter dated July 12, 2001. Although certain correspondence sent by UTS later conditioned that permission on the plaintiffs' execution of a lease, which the plaintiffs never executed, the final letter from UTS to the plaintiffs, which was dated September 26, 2001, granted the plaintiffs unconditional permission to use the driveway. There was no evidence presented that UTS revoked that unconditional permission thereafter. Accordingly, the Supreme Court erred in determining that the plaintiffs were entitled to a prescriptive easement over the driveway, since the plaintiffs failed to demonstrate, by clear and convincing evidence, that their use of the driveway was hostile for a 10-year period (see Bolognese v Bantis, 215 A.D.3d at 620; Bratone v Conforti-Brown, 150 A.D.3d at 1071; Diaz v Mai Jin Yang, 148 A.D.3d 672, 674).
In light of our determination, we need not reach the defendants' remaining contention.
Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Dutchess County, for the entry of an appropriate amended judgment, inter alia, declaring that the plaintiffs do not have a right to use the driveway that runs through the property of Casella Wood, LLC, and the defendants have the right to exclude the plaintiffs from the driveway (see Lanza v Wagner, 11 N.Y.2d 317, 334).
CONNOLLY, J.P., BRATHWAITE NELSON, CHRISTOPHER and TAYLOR, JJ., concur.