Carrasquillo v. Seb Dev., LLC

• Decision Date: 12 November 2010
• Citation: 910 N.Y.S.2d 620,78 A.D.3d 1599
• Parties: Christopher CARRASQUILLO and Julia C. Carrasquillo, Plaintiffs-Respondents, v. SEB DEVELOPMENT, LLC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 620 78 A.D.3d 1599 Christopher CARRASQUILLO and Julia C. Carrasquillo, Plaintiffs-Respondents, v. SEB DEVELOPMENT, LLC, Defendant-Appellant. Supreme Court, Appellate Division, Fourth Department, New York. Nov. 12, 2010.

Watson Bennett Colligan & Schechter LLP, Buffalo (A. Nicholas Falkides of Counsel), for Defendant-Appellant.

PRESENT: MARTOCHE, J.P., SCONIERS, GREEN, AND PINE, JJ.

MEMORANDUM:

Plaintiffs own property in the City of Buffalo that adjoins property owned by defendant, and they commenced this action seeking, inter alia, to enjoin defendant from interfering with their right to use a strip of land that is five feet in width and runs along the northern border of defendant's property contiguous with their property (alley). The record establishes that, in 1996, plaintiffs had contacted defendant's predecessor in interest and requested its consent to make improvements to the alley by widening their driveway across it, and that defendant's predecessor gave plaintiffs its permission to do so. Thereafter, defendant's predecessor in interest continued to use the alley. Defendant purchased the property in June 2004 and, after experiencing water damage to the building located thereon due to water run-off from plaintiffs' driveway, defendant built a fence and informed plaintiffs that they had no right to use the alley. We agree with defendant that Supreme Court erred in denying its motion for partial summary judgment dismissing the first cause of action, alleging that plaintiffs acquired ownership of the property by adverse possession and that they have an easement over the property. With respect to adverse possession, defendant met its initial burden on the motion by establishing as a matter of law that two of the five elements of adverse possession were not present, i.e., plaintiffs' possession was not hostile nor was it exclusive ( see Taillie v. Rochester Gas & Elec. Corp., 68 A.D.3d 1808, 1809, 891 N.Y.S.2d 786; see generally Walling v. Przybylo, 7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167; West Middlebury Baptist Church v. Koester, 50 A.D.3d 1494, 1495, 856 N.Y.S.2d 392). With respect to an easement, defendant established as a matter of law that plaintiffs did not have an easement by express grant ( see Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965, 510 N.Y.S.2d 543, 503 N.E.2d 99, rearg. denied 69 N.Y.2d 742, 512 N.Y.S.2d 1031, 504 N.E.2d 700), nor did they have a prescriptive easement ( see Beutler v. Maynard, 80 A.D.2d...