Opinion
Index No. 12898/2008
08-06-2024
ESTHER SPITZER, Plaintiff, v. MORDECHAI D. HUS ARSKY AND MALKA HUSARSKY, Defendant,
Unpublished Opinion
DECISION /ORDER
PETER P. SWEENEY, J.S.C.
Martin Weiszberger in Trust commenced this action seeking, inter alia, injunctive relief as: well as a declaration that it had a prescriptive easement over a 3-foot strip of land located on Defendants' Property. During the pendency of the action, Esther Spitzer was substituted in place of Martin Weiszberger in Trust, A bench trial was held before the undersigned on October 5, 2021, November 17, 2021, November 18, 2021, May 16, 2022, May 17, 2022, and concluded on November 21,2023. hollowing the trial, the parties submitted Post-Trial Memorandums of Law. Upon due deliberation and after careful review of the trial, evidence and the Post-Trial Memorandums of Law, the court makes the following findings of fact and conclusions of law:
Findings of Fact:
By deed dated June 29, 1997, Irving Berk ('"Berk") transferred the real property located at 1075 East 18th Street, Brooklyn. New York ("Plaintiffs Property”) to "Martin Weiszberger in. Trust." Following Martin Weiszberger's death, all interest in Plaintiff's Property was transferred to Esther Spitzer, Martin Weiszberger's daughter, Who. is now the Plaintiff in the action. Plaintiff is married to Mark Spitzer and he and his wife, along with their Children, have been living at Plaintiffs Property Since Martin Weiszberger in Trust acquired the property.
The defendants, Mordechai D. Husarsky and Malka Husarsky, are the owners of property located at 1079 East 18 th Street, Brooklyn, New York ("Defendants' Property"), having acquired title thereto on November 29, 2006, from the late Sender Kleinbard ("Kleinbard"). Defendants' property is located immediately adjacent to Plaintiffs property and the two properties are separated by a strip of land that is approximately 11 feet wide. An 8-foot portion of this strip is located on Plaintiff's Property while the remaking 3-foot portion is located on Defendants' Property . Plaintiff claims that she and her family regularly used the 11-foot strip of land, including: the 3-foot strip of land on Defendants' Property, as a driveway. In April of 2007. tile defendants erected a construction fence on their property along portions of the 11-foot strip of land which blocked plaintiffs access and use of the aforesaid 3-foot strip of land. Plaintiff commenced this action on April 8, 2008, claiming that she has a prescriptive easement over the aforesaid 3-foot strip of land.
Conclusions of Law:
To acquire an easement by adverse possession or an easement by prescription, it must be shown that the use of land was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of TO years (see Isnady v. Walden Preserv. L,P, 208 A.D.3d 568, 570, 173 N.Y.S.3d 49, quoting Panday v. Allen 187 A.D.3d 775, 777, 133 N.Y,S.3d 303; see Kusmicki v. Bentley Yacht Club, 193 A.D.3d 710, 711, 148 N.Y.S.3d 128). "The elements of a prescriptive easement must be established by clear and convincing evidence" (Panday v. Alien, 187 A.D,3d at777,133 N.Y.S.3d 303 [internal quotation marks omitted]; see Bolognese v. Bantis, 215 A.D.3d 616, 619, 187 N.Y.S3d 689; Almeida v. Wells. 74 A.D.3d 1256, 1258, 904 N.Y.S.2d 736).
"'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 (Bralone v, Conforti -Brown. 150 A,D.3d 1068, 1071, 56 N.Y.S.3dT74, quoting Hinkley v Slate of New York. 234 N.Y, 309, 316,137 N,E. 599). "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'" (Bralone v. Conforti-Brown, 150 A,D.3d at 1071, 56 N.Y.S.3d 174 [citations omitted], quoting Hinkley v. Slate of New York. 234 N.Y. at 317, 137 NT. 599). Further, "hostility will be found lacking where use of the disputed property was 'permitted as a matter of [willing accord and] neighborly accommodation"' (Bolognese n Bantis, 215 A.D.3d at 620, 187 N.Y'S.3d 689, quoting Ryan v. Posner, 68 A.D.3d 963, 965, 892 N.Y.S.2d 439: see MJK Bldg. Corp, v. Fayland Realty. Inc., 181 A.D.3d 860, 862. 122 N.Y.S.3d 67).
A party claiming a proscriptive easement may establish adverse use for the statutory 10-year period by Tacking' the time that the party adversely used the property onto the time that the party's predecessor adversely used the property (see Munroe v. Cheyenne Realty, LLC, 131 A.D.3d 1141, 1142, 16 N.Y.8.3d 842; see Diaz v. Mai Jin Yang. 148 A,D.3d at 674, 48 N Y.S.3d 485; Stroem v. Plackis, 96 A.D.3d 1040, 1042-1043, 948 N.Y.S.2d 90; Yee v. Panousopoulos, 176 A-D.3d 1142, 1144, 110 NY.S.3d 116, 118). The right to rely on "tacking" to satisfy the prescriptive 10-year must also be established by clear and convincing evidence (see CSC Acquisition-NY. Inc. v. 404 Cnty. Rd. 39A, Inc., 96 A,D.3d 986, 988. 947 N.Y.S,2d 556, 559).
Martin Weiszberger in Trust, Plaintiff s immediate predecessor in interest, acquired title to Plaintiff s Property on June 27, 1997. Plaintiffs use of the 3-foot strip, whether permissive or adverse, an issue that need not be addressed. Was interrupted by Defendants' erection of a "construction fence" in April of 2007. From When Weiszberger in Trust purchased the property to when the fence was erected, a period of approximately 9 years and 10 months elapsed. Plaintiff therefore did not demonstrate, by clear and convincing evidence, that she and Martin Weiszberger in Trust adversely used the 3-foot strip for a period of 10 or more years.
Plaintiff s counsel contends that Plaintiff adverse use of the 3-foot strip for more than the 10-year prescriptive period was demonstrated because "[i]t cannot be disputed that the Plaintiff [the Trust] purchased the Property in 1997, and more than 10 years prior to the commencement of the instant action in 2008." This argument is totally devoid of merit. Again, any period of possible adverse use by the Plaintiff ended in April of 2007, when Defendants blocked her use of the 3-foot strip by erecting the construction fence. The date when the action was commenced is irrelevant to the calculation of the 10 wear prescriptive period.
Since Plaintiff did not establish that she and the Martin Weiszberger in Trust adversely used the 3-foot strip for the 10-year prescriptive period, to prevail in the action. Plaintiff had to demonstrate adverse use of the 3-foot strip for the 10-year prescriptive statutory period by "tacking" on time that Berk adversely used the strip. As slated above. Berk sold Plaintiff s Property to Martin Weiszberger in Trust on June 29. 1997. More specifically, Plaintiff had to demonstrate by clear and convincing evidence that for at least two months before Berk sold Plaintiffs Property to Martin Weiszberger in Trust, he was using the 3-foot strip adversely to the interests of Sender Kleinbard, the owner of Defendants' Property at the time. No such showing was made. Absolutely no admissible evidence was introduced demonstrating that Berk ever adversely used the 3-foot stip. For this reason, the action must be dismissed (Munroe T. Cheyenne Realty. LLC. 131 A.D.3d at 1142, 16 N.Y.S.3d 842; see CSC Acquisition-NY. Inc. v. 404 County Rd. 39A. Inc., 96 A.D.3d 986. 988. 947 N.Y.S.2d 556; Reis v. Coron. 37 A.D.3d 803. 804. 830 N.Y.S.2d 589; Diaz v. Mai Jin Yang. 148 A.D.3d 672. 674, 48 N.Y.S.3d 485. 487).
Conclusion:
In sum, since the Plaintiff did not establish by clear and convincing a cause of action for a prescriptive easement, it is hereby
ORDRED and ADJUDGED that Plaintiffs complaint is dismissed.
This constitutes the decision, order and judgment of the Court.