Mihaly v. Mahoney

• Decision Date: 08 January 1987
• Citation: 126 A.D.2d 791,510 N.Y.S.2d 826
• Parties: Janos MIHALY, et al., Appellants, v. Patrick J. MAHONEY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 826

510 N.Y.S.2d 826

126 A.D.2d 791

Janos MIHALY, et al., Appellants, v. Patrick J. MAHONEY, et al., Respondents.

Supreme Court Appellate Division,

Third Department.

Jan. 8, 1987.

Bruce S. Trachtenberg, Schenectady, for appellants.

Eidens & Dickson (Deanna L. Siegel, of counsel), Schenectady, for Patrick J. Mahoney, respondents.

Before MAHONEY, P.J., and MAIN, WEISS, YESAWICH and LEVINE, JJ.

LEVINE, Justice.

Appeal from an order of the Supreme Court at Special Term (Dier, J.), entered January 29, 1985 in Schenectady County, which, inter alia, granted defendant Patrick J. Mahoney's motion to dismiss the complaint for want of prosecution.

Plaintiffs commenced the instant action in November 1982 seeking, inter alia, a prescriptive easement over a driveway located partly on defendant Patrick J. Mahoney's property and partly on plaintiffs' adjoining property. Issue was joined in January 1983 after which the parties commenced discovery. On August 20, 1984, Mahoney served plaintiffs with a CPLR 3216 90-day notice demanding that they file a note of issue. Thereafter, on October 16, 1984, plaintiffs deposed Mahoney. However, the parties disagreed as to the relevancy of the questions asked by plaintiffs and Mahoney terminated the examination prior to its completion. On October 27, 1984, Mahoney brought on a motion pursuant to CPLR 3216 to dismiss plaintiffs' complaint due to their failure to file a note of issue. Plaintiffs opposed the motion, claiming that Mahoney's termination of the October 16 deposition had prevented their completion of discovery and excused their failure to file a note of issue. Plaintiffs opposed the motion, claiming that Mahoney's termination of the October 16 deposition had prevented their completion of discovery and excused their failure to file a note of issue. Plaintiffs cross-moved for an order compelling Mahoney to submit to further discovery and for permission to serve an amended complaint. Special Term granted Mahoney's motion, dismissed the complaint, and denied plaintiffs' applications as academic. This appeal by plaintiffs ensued.

To defeat Mahoney's motion for dismissal, plaintiffs were required to demonstrate both an excuse for their failure to file a note of issue after being served with Mahoney's 90-day demand and the existence of a meritorious cause of action (Slocum v. Board of Educ., Binghamton City School Dist., 124 A.D.2d 269, 508 N.Y.S.2d 71 [1986]; Aquilino v. Adirondack Tr Lines, 97 A.D.2d 929, 470 N.Y.S.2d 723). It is arguable that Mahoney's termination of the October 16 deposition constituted an obstruction of discovery sufficient to excuse plaintiffs' failure to file a note of issue (see, Dick v. Samaritan Hosp., 115 A.D.2d 917, 918, 496 N.Y.S.2d 814). However, plaintiffs failed to demonstrate the merits of their claim for a prescriptive easement.

A prescriptive easement is established by the adverse, open, notorious and continuous use of property for the prescriptive 10-year period (CPLR 212 [a]; Miller v. Bettucci, 89 A.D.2d 706, 453 N.Y.S.2d 828; Fila v. Angiolillo, 88 A.D.2d 693, 451 N.Y.S.2d 316, lv. denied 57 N.Y.2d 609, 457 N.Y.S.2d 1025, 443 N.E.2d 494; Beutler v. Maynard, 80 A.D.2d 982, 437 N.Y.S.2d 463, affd. 56 N.Y.2d 538, 449 N.Y.S.2d 966, 434 N.E.2d 1344). Since plaintiffs had been in possession of their property and used the subject driveway for only six years, it was incumbent upon them to demonstrate that their predecessors in title had adversely used the driveway for the previous four years and that plaintiffs were entitled to tack that prior use onto their own to establish the prescriptive period (Fila v. Angiolillo, supra; Beutler v. Maynard, supra). Plaintiffs submitted affidavits of their immediate predecessors in interest, Leo...