Chan v. Y & Dev. Corp..

• Decision Date: 15 March 2011
• Citation: 919 N.Y.S.2d 74,82 A.D.3d 942,2011 N.Y. Slip Op. 01983
• Parties: MEE WAH CHAN, et al., appellants,v.Y & DEVELOPMENT CORP., et al., respondents.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 942
919 N.Y.S.2d 74
2011 N.Y. Slip Op. 01983

MEE WAH CHAN, et al., appellants,
v.
Y & DEVELOPMENT CORP., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 15, 2011.

[919 N.Y.S.2d 75]

Swidler & Messi, LLP, New York, N.Y. (Steven A. Swidler of counsel), for appellants.Mark Sternick, Forest Hills, N.Y., for respondents.DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

[82 A.D.3d 943] In an action pursuant to RPAPL article 15, inter alia, for a judgment declaring that the plaintiffs have an easement by prescription over certain real property, the plaintiffs appeal from an order of the Supreme Court, Queens County (Hart, J.), dated January 8, 2010, which granted the defendants' motion for summary judgment, in effect, declaring that they do not have an easement by prescription over the real property.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment, in effect, declaring that the plaintiffs do not have an easement by prescription over the subject real property is denied.

To establish an easement by prescription, the plaintiffs are required to show by clear and convincing evidence that the use was adverse, open and notorious, continuous, and uninterrupted for the prescriptive period ( see Zutt v. State of New York, 50 A.D.3d 1133, 856 N.Y.S.2d 245; Duckworth v. Ning Fun Chiu, 33 A.D.3d 583, 822 N.Y.S.2d 147; J.C. Tarr, Q.P.R.T. v. Delsener, 19 A.D.3d 548, 800 N.Y.S.2d 177). The right acquired is measured by the extent of the use ( see Zutt v. State of New York, 50 A.D.3d at 1133, 856 N.Y.S.2d 245) which, in this case, is alleged to be the plaintiffs' use, since 1996, of a roughly three-foot wide strip of land owned by the defendant Y & Development Corp. (hereinafter Y & D) in order to gain access to the side door of their house.

The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by conclusively negating any one of the elements of an easement by prescription which, if proven by the plaintiffs at trial, would warrant the recognition an easement by prescription ( see Gravelle v. Dunster, 2 A.D.3d 964, 768 N.Y.S.2d 240). Contrary to the Supreme Court's determination, the plaintiffs' failure to allege or establish that they either “usually cultivated or improved” the disputed property or “protected [it] by a substantial inclosure” is not a basis upon which to award...