Bolognese v. Bantis
| Decision Date | 05 April 2023 |
| Docket Number | 2019-14154,Index No. 512070/17 |
| Citation | 2023 NY Slip Op 01771 |
| Parties | Richard Bolognese, et al., appellants-respondents, v. Kalliope Bantis, et al., respondents-appellants. |
| Court | New York Supreme Court — Appellate Division |
Abrams, Gorelick, Friedman & Jacobson, LLP, New York, NY (Steven DiSiervi of counsel), for appellants-respondents.
London Fischer LLP, New York, NY (James Walsh of counsel), for respondents-appellants.
ANGELA G. IANNACCI, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the plaintiffs have an easement over certain property owned by the defendants, the plaintiffs appeal, and the defendants cross-appeal, from an order of the Supreme Court, Kings County (Debra Silber, J.), dated November 26, 2019. The order, insofar as appealed from, denied those branches of the plaintiffs' motion which were for summary judgment declaring that they had a prescriptive easement over a driveway on the defendants' property and that they were the owners of a certain other portion of the defendants' property by adverse possession, granted the defendants' motion for summary judgment on their counterclaim to compel the plaintiffs to remove a fence from the defendants' property, granted those branches of the defendants' cross-motion which were, in effect, for summary judgment declaring that the plaintiffs did not have a prescriptive easement over the driveway on the defendants' property and were not the owners of the certain other portion of the defendants' property by adverse possession, and, sua sponte, modified an order of the same court dated May 5 2018, granting a preliminary injunction, so as to prohibit all parties from parking on or otherwise obstructing certain portions of their properties. The order, insofar as cross-appealed from, denied that branch of the defendants' cross-motion which was, in effect, for summary judgment declaring that the plaintiffs did not have an easement by necessity over the driveway on the defendants' property.
ORDERED that the appeal from so much of the order dated November 26 2019, as, sua sponte, modified the order dated May 5, 2018 granting a preliminary injunction, so as to prohibit all parties from parking on or otherwise obstructing certain portions of their properties is dismissed, as no appeal lies as of right from a portion of an order that does not decide a motion made on notice (see CPLR 5701[a]), and leave to appeal has not been granted; and it is further, ORDERED that the order dated November 26, 2019, is affirmed insofar as reviewed on the appeal; and it is further, ORDERED that the order dated November 26, 2019, is reversed insofar as cross-appealed from, on the law, and that branch of the defendants' cross-motion which was, in effect, for summary judgment declaring that the plaintiffs did not have an easement by necessity over the driveway on the defendants' property is granted; and it is further, ORDERED that the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the plaintiffs do not have a prescriptive easement or an easement by necessity over the driveway on the defendants' property and are not the owners of the certain other portion of the defendants' property by adverse possession; and it is further, ORDERED that one bill of costs is awarded to the defendants.
The plaintiffs and the defendants own adjoining parcels of property in Kings County which each contain a residence and a separate detached garage in the rear. The plaintiffs acquired their property in 1991 and the defendants acquired their property in 1996. There is a 17-foot-wide driveway between the houses. The boundary between the two properties runs through and along the entire length of the driveway, such that seven feet of the driveway's width is on the plaintiffs' property, while the remaining 10 feet of width is on the defendants' property. The deeds and title documents for the subject properties contain no written easements or other rights-of-way. Nevertheless, the plaintiffs regularly drove their vehicles over part of the defendants' portion of the driveway in order to enter and leave their garage. The plaintiffs also regularly parked some of their seven vehicles on their side of the driveway.
In addition, shortly after the plaintiffs acquired their property, they installed a retractable, rolling fence in a narrow space between the garages. A property survey taken in 2017 showed that the fence encroached approximately five inches onto the defendants' property (hereinafter the five-inch strip).
Subsequently, the parties had a dispute over the use of the driveway and on June 20, 2017, the plaintiffs commenced the instant action, inter alia, for a judgment declaring that they had a prescriptive easement, or an easement by necessity, over the driveway on the defendants' property for ingress/egress in and out of their garage and to maneuver their vehicles. The defendants answered and asserted, inter alia, a counterclaim to compel the plaintiffs to remove the fence on the five-inch strip. In an answer to the counterclaim filed August 11, 2017, the plaintiffs asserted that they owned the five-inch strip by adverse possession.
After discovery was completed, the defendants moved for summary judgment on their counterclaim to compel the plaintiffs to remove the fence. The plaintiffs moved, among other things, for summary judgment declaring that they had a prescriptive easement over the driveway on the defendants' property and that they owned the five-inch strip by adverse possession. Thereafter, the defendants cross-moved, in effect, for summary judgment declaring that the plaintiffs did not have a prescriptive easement or easement by necessity over the defendants' driveway and were not the owners of the five-inch strip by adverse possession.
By order dated November 26, 2019, the Supreme Court, inter alia, denied those branches of the plaintiffs' motion which were for summary judgment declaring that they had a prescriptive easement over the driveway on the defendants' property and that they owned the five-inch strip by adverse possession, granted the defendants' motion for summary judgment on their counterclaim to compel the plaintiffs to remove the fence, granted those branches of the defendants' cross-motion which were, in effect, for summary judgment declaring that the plaintiffs did not have a prescriptive easement over the driveway on the defendants' property and were not the owners of the five-inch strip by adverse possession, and denied that branch of the defendants' cross-motion which was, in effect, for summary judgment declaring that the plaintiffs did not have an easement by necessity over the driveway on the defendants' property. The plaintiffs appeal, and the defendants cross-appeal.
The Supreme Court properly determined that, as a matter of law the plaintiffs were not the owners of the five-inch strip by adverse possession. Under the law as it existed prior to the 2008 amendments to the adverse possession statutes contained in RPAPL article 5, which prior law is applicable here, "in order to establish a claim to property by adverse possession, a claimant must prove, by clear and convincing evidence, that possession of the property was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period" (SLC Coram, LLC v 543 Middle Country Rd. Realty, LLC, 161 A.D.3d 1122, 1123). Additionally, where, as here, the adverse possession is not founded upon a written instrument, the possessor must also establish, in accordance with the law in effect at the relevant time, "that the disputed property was either 'usually cultivated or improved' or 'protected by a substantial inclosure'" (Skyview Motel, LLC v Wald, 82 A.D.3d 1081, 1082, quoting RPAPL former 522; see Pritsiolas v Apple Bankcorp, Inc., ...
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