Gravelle v. Dunster
| Decision Date | 04 December 2003 |
| Docket Number | 94291. |
| Citation | 768 N.Y.S.2d 240,2 A.D.3d 964,2003 NY Slip Op 19077 |
| Parties | LORI GRAVELLE, Appellant, v. NELSON G. DUNSTER et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Plaintiff is the owner of a parcel of real property situate on Dayton Hill Road in the Town of Granville, Washington County. Defendants own real property which abuts plaintiff's property to the east. Plaintiff's driveway is located on the eastern side of her property and extends approximately six feet onto defendants' property. She has used the driveway to access her home since 1993 when she acquired the property from Kathleen Bennett. The record further reveals that Bennett had likewise used the driveway for access to Dayton Hill Road, including defendants' six-foot strip of land, since 1988.
Plaintiff commenced this proceeding pursuant to RPAPL article 15 seeking a declaration that she has a prescriptive easement over defendants' six-foot strip of land which comprises a portion of her driveway. Following joinder of issue, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Supreme Court granted defendants' motion and denied plaintiff's cross motion prompting this appeal from the order and judgment entered thereon.
It is axiomatic that for plaintiff to establish a prescriptive easement, she must demonstrate by clear and convincing evidence that her use of defendants' property was for her benefit and was adverse, open, notorious, continuous and uninterrupted for 10 years (see e.g. Beretz v Diehl, 302 AD2d 808, 809 [2003]). Moreover, in order to meet the requirements of the prescriptive period, use by plaintiff's predecessor in title may be considered so long as there is, as here, an unbroken chain of privity between the two (see Rose Val. Joint Venture v Apollo Plaza Assoc., 178 AD2d 695, 696-697 [1991]). Once plaintiff has established the elements of open, notorious, continuous and uninterrupted use for a 10-year period, a presumption arises that such use was hostile, thereby shifting the burden to defendants to demonstrate that such use was permissive (see Gorman v Hess, 301 AD2d 683, 685 [2003]).
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