Pierce v. Frost

• Decision Date: 14 June 2002
• Citation: 295 A.D.2d 894,743 N.Y.S.2d 642
• Parties: RONALD W. PIERCE et al., Appellants,<BR>v.<BR>JOE G. FROST et al., Respondents. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

295 A.D.2d 894

743 N.Y.S.2d 642

RONALD W. PIERCE et al., Appellants,

v.JOE G. FROST et al., Respondents. (Appeal No. 2.)

Decided June 14, 2002.

Present — Pine, J.P., Hurlbutt, Burns, Gorski and Lawton, JJ.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by reinstating the complaint and granting judgment in favor of plaintiffs as follows: It is adjudged and declared that plaintiffs have a prescriptive easement to the lot of approximately 23 acres acquired in 1989 and by granting judgment in favor of defendants as follows: It is further adjudged and declared that plaintiffs do not have a prescriptive easement to the lot of approximately 20 acres acquired in 1984 and as modified the judgment is affirmed without costs and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following memorandum: Plaintiffs commenced this action seeking a declaration that they have two prescriptive easements across defendants' property to two of their parcels, a lot of approximately 20 acres acquired in 1984 through a tax sale (20-acre lot) and a lot of approximately 23 acres acquired in 1989 by deed from the mother of plaintiff Judy A. Pierce (23-acre lot). Defendants denied plaintiffs access to the alleged easements in September 1995. Plaintiffs also seek compensatory damages for the loss of access to and use of their parcels.

Supreme Court properly denied plaintiffs' motion for summary judgment. Although plaintiffs met their initial burden by establishing that their use of the subject property was "adverse, open and notorious, continuous and uninterrupted" for the statutory period of 10 years (Di Leo v Pecksto Holding Corp., 304 NY 505, 512; see Tulley v Bayfront N., 286 AD2d 873; Northtown, Inc. v Vivacqua, 272 AD2d 917, 918; see also RPAPL 311), defendants raised an issue of fact whether the use was permissive (see generally Reiss v Maynard, 148 AD2d 996, 997).

Following the trial, the court dismissed the complaint on the ground that plaintiffs had failed to establish by clear and convincing evidence that they were entitled to a prescriptive easement with respect to either lot. Upon our review of the record, we conclude that plaintiffs established by clear and convincing evidence that their use of the alleged easement to the 23-acre lot was adverse, open and notorious, and continuous and uninterrupted for the statutory period (see Garrett v Holcomb, 215 AD2d 884, 885). The statutory period properly includes a period tacked on from plaintiffs' predecessors in interest, who had owned the 23-acre lot since 1944, used the alleged prescriptive easement since that time, and maintained the alleged prescriptive easement since the 1970s. Plaintiffs, therefore, were entitled to a presumption of adverse use (see Di Leo, 304 NY at 512; Fatone v Vona, 287 AD2d 854, 856), and defendants failed to rebut that presumption (see Reiss, 148 AD2d at 997). Because plaintiffs presented clear and convincing evidence with respect to the 23-acre lot that was essentially unrefuted by defendants, we conclude that the court's determination with respect to that lot could not have been reached on any fair interpretation of the evidence (see generally Aviles v Dryden Mut. Ins. Co., 278 AD2d 829).

We further conclude, however, that the court's determination that plaintiffs failed to establish by clear and convincing evidence that they had a prescriptive easement with respect to the...