Manouselis v. Woodworth Realty, LLC

• Decision Date: 12 April 2011
• Citation: 83 A.D.3d 801,920 N.Y.S.2d 683,2011 N.Y. Slip Op. 03039
• Parties: Spiros MANOUSELIS, et al., appellants, v. WOODWORTH REALTY, LLC, et al., respondents.
• Court: New York Supreme Court

83 A.D.3d 801

920 N.Y.S.2d 683

Spiros MANOUSELIS, et al., appellants,

v.WOODWORTH REALTY, LLC, et al., respondents.

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

April 12, 2011.

Maniatis Dimopoulos & Lombardi LLP, Scarsdale, N.Y. (Constantine G. Dimopoulos of counsel), for appellants.

Novick & Kaner, P.C., New Rochelle, N.Y. (Morton Kaner of counsel), for respondents.

In an action for a judgment declaring that the plaintiffs have a prescriptive easement over a portion of the defendants' property, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), dated May 25, 2010, which, upon a jury verdict on the issue of liability in favor of the defendants and against them, declared that they do not have a prescriptive easement over the defendants' property.

ORDERED that the judgment is affirmed, with costs.

“An easement by prescription is demonstrated by proof of the adverse, open and notorious, continuous and uninterrupted [use of the property] for the prescriptive period. Generally, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive” ( J.C. Tarr, Q.P.R.T. v. Delsener, 19 A.D.3d 548, 550, 800 N.Y.S.2d 177 [citations and internal quotation marks omitted]; see Eskenazi v. Sloat, 40 A.D.3d 577, 578, 834 N.Y.S.2d 330;Duckworth v. Ning Fun Chiu, 33 A.D.3d 583, 584, 822 N.Y.S.2d 147;Frumkin v. Chemtop, 251 A.D.2d 449, 674 N.Y.S.2d 409).

Here, there is a “valid line of reasoning and permissible inferences” which could lead a rational jury to conclude, as did the jury here, that the plaintiffs failed to establish that they have a prescriptive easement over the defendants' property ( Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;see Eskenazi v. Sloat, 40 A.D.3d at 578, 834 N.Y.S.2d 330;*684Gannon v. All Car Movers, Ltd., 18 A.D.3d 702, 702–703, 795 N.Y.S.2d 742). In this case, the public's use of the subject property rendered the presumption of hostility inapplicable ( see Burcon Props. v. Dalto, 155 A.D.2d 501, 547 N.Y.S.2d 362;Susquehanna Realty Corp. v. Barth, 108 A.D.2d 909, 485 N.Y.S.2d 795). Moreover, we cannot say, upon the exercise of our factual review power, that the evidence so preponderated in favor of the plaintiffs that the...