Opinion
2014-02-13
Martin WEISZBERGER in Trust, appellant, v. Mordechai D. HUSARSKY, et al., respondents.
Goldberg & Rimberg, PLLC, New York, N.Y. (Israel Goldberg and Mindy Kallus of counsel), for appellant. Solomon & Siris, P.C., Garden City, N.Y. (Michael J. Siris of counsel), for respondents.
Goldberg & Rimberg, PLLC, New York, N.Y. (Israel Goldberg and Mindy Kallus of counsel), for appellant. Solomon & Siris, P.C., Garden City, N.Y. (Michael J. Siris of counsel), for respondents.
In an action, inter alia, for a judgment declaring that the plaintiff has a prescriptive easement over a portion of the defendants' property, the plaintiff appeals from an order of the Supreme Court, Kings County (Graham, J.), dated June 12, 2012, which granted the defendants' motion for summary judgment declaring that it does not have a prescriptive easement.
ORDERED that the order is reversed, on the law, with costs, and the motion is denied.
The plaintiff commenced this action, inter alia, for a judgment declaring that it has a prescriptive easement over a portion of the defendants' property adjacent to the plaintiff's driveway. To acquire a prescriptive easement, a party must establish by clear and convincing evidence that the use of the property was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years ( see Old Town Tree Farm, Inc. v. Long Is. Power Auth., 101 A.D.3d 692, 955 N.Y.S.2d 170; Garden Homes Mobile Home Park Co. LP v. Patel, 100 A.D.3d 688, 689, 954 N.Y.S.2d 165; Masucci v. DeLuca, 97 A.D.3d 550, 551, 948 N.Y.S.2d 339; CSC Acquisition–NY, Inc. v. 404 County Rd. 39A, Inc., 96 A.D.3d 986, 987, 947 N.Y.S.2d 556).
In moving for summary judgment declaring that the plaintiff does not have a prescriptive easement, the defendants established their prima facie entitlement to judgment as a matter of law by submitting the affidavits of the defendant Mordechai D. Husarsky and the defendants' predecessor in title, indicating that the use of the subject property had been permissive as part of a neighborly accommodation ( see generally Estate of Becker v. Murtagh, 19 N.Y.3d 75, 82, 945 N.Y.S.2d 196, 968 N.E.2d 433; Air Stream Corp. v. 3300 Lawson Corp., 99 A.D.3d 822, 826–827, 952 N.Y.S.2d 608; 315 Main St. Poughkeepsie, LLC v. WA 319 Main, LLC, 62 A.D.3d 690, 691, 878 N.Y.S.2d 193; Duckworth v. Ning Fun Chiu, 33 A.D.3d 583, 584, 822 N.Y.S.2d 147). However, in opposition to the motion, the plaintiff submitted the affirmation of nonparty Mark Spitzer, who has occupied the plaintiff's property since 1997, and who claimed that, over the objections of the defendants and their predecessor, he and his predecessor in interest regularly used the disputed area for more than the prescriptive period of 10 years. Contrary to the determination of the Supreme Court, this evidence sufficed to raise issues of fact and credibility which warranted denial of the motion, since these matters must be resolved by the triers of fact ( see Bravo v. Vargas, 113 A.D.3d 579, 978 N.Y.S.2d 307 [2d Dept.2014]; Matter of Harold, 112 A.D.3d 929, 979 N.Y.S.2d 334; Brown v. Pinkett, 110 A.D.3d 1024, 1025, 973 N.Y.S.2d 776; Pavane v. Marte, 109 A.D.3d 970, 972, 971 N.Y.S.2d 562; Green v. Quincy Amusements, Inc., 108 A.D.3d 591, 592, 969 N.Y.S.2d 489). Accordingly, the motion for summary judgment must be denied. MASTRO, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.