Rensselaer Polytechnic Inst. v. Schubert

• Decision Date: 07 March 2019
• Docket Number: 526889
• Citation: Rensselaer Polytechnic Inst. v. Schubert, 170 A.D.3d 1307, 95 N.Y.S.3d 452 (N.Y. App. Div. 2019)
• Parties: RENSSELAER POLYTECHNIC INSTITUTE, Respondent, v. E. Fred SCHUBERT et al., Appellants.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1307

95 N.Y.S.3d 452

RENSSELAER POLYTECHNIC INSTITUTE, Respondent,

v.E. Fred SCHUBERT et al., Appellants.

526889

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

Decided and Entered: March 7, 2019

Calendar Date: January 10, 2019

McNamee Lochner PC, Albany (Scott C. Paton of counsel), for appellants.

Pattison, Sampson, Ginsberg & Griffin, PLLC, Troy (Michael E. Ginsberg of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Garry, P.J.Appeal from an order of the Supreme Court (Elliott III, J.), entered December 18, 2017 in Rensselaer County, which, among other things, granted plaintiff's motion for summary judgment.

Plaintiff and defendants own adjoining properties in the City of Troy, Rensselaer County. Plaintiff bought its property in 2014 from the estate of the former owner (hereinafter decedent), who had acquired the property in 1969 and died in 2013.

Plaintiff also formerly owned defendants' property, and sold it to defendants in 2006.

While plaintiff was conducting renovations on its property in 2015, defendants complained that contractors were parking vehicles on their land and walking on their property when they got in and out of parked vehicles. In November 2015, plaintiff commissioned a survey that confirmed that a narrow strip of its driveway encroached on defendants' property. Plaintiff attempted to purchase an easement upon learning that defendants intended to erect a fence or boundary marker along the property line running through the driveway, but defendants refused this offer.

In February 2016, plaintiff commenced this action pursuant to RPAPL article 15 asserting, among other things, that it had acquired an easement by prescription over the encroaching portion of the driveway. Shortly thereafter, defendants placed a line of stakes connected by a chain, approximately 20 inches high, in the driveway along the property line. In September 2016, defendants obtained a survey showing that, after placement of this boundary marker, the remainder of plaintiff's driveway – which they claimed remained usable with no need for an easement – did not encroach on defendants' property.

After joinder of issue and discovery, plaintiff and defendants each moved for summary judgment and opposed the other party's application. Supreme Court granted plaintiff's motion, denied defendants' motion, awarded plaintiff a two-foot-wide prescriptive easement adjacent to the property line to allow ingress and egress from vehicles in plaintiff's driveway, directed defendants to remove the boundary marker, and enjoined defendants from erecting any future fence or marker that would encroach on the easement. Defendants appeal.

Defendants failed to preserve their appellate argument that the relief granted by Supreme Court exceeded the scope of plaintiff's pleadings, as they raised this claim for the first time on appeal (see generally Bender v. Peerless Ins. Co., 36 A.D.3d 1120, 1121, 828 N.Y.S.2d 655 [2007] ). Plaintiff's motion papers expressly stated that plaintiff sought a prescriptive easement to permit persons using plaintiff's driveway to enter and exit their vehicles, and the record does not reveal that defendants argued that this relief exceeded the scope of plaintiff's complaint. Further, there was no "prejudice or unfair surprise" that might have precluded amendment of the complaint had defendants' claim been timely raised ( Adirondack Combustion Tech., Inc. v. Unicontrol, Inc., 17 A.D.3d 825, 826, 793 N.Y.S.2d 576 [2005] ; see CPLR 3025[b], [c] ), as plaintiff's submissions included witness testimony asserting that an easement was needed because the narrow configuration of plaintiff's remaining driveway prevented users from entering and exiting their vehicles without striking the boundary marker or stepping onto defendants' property.

In support of its summary judgment motion, plaintiff submitted surveys made in 2006, 2014 and 2015, all of which depict a narrow strip of plaintiff's driveway encroaching on defendants' property. A corner post – marked as "found," or already in place, on the 2006 survey – appears in all three surveys, located within the driveway and marking the point where the boundary line between the parties' properties meets the properties' front boundary lines.

Plaintiff also submitted affidavits from two nieces of decedent, who were the coexecutors of decedent's estate. The nieces had visited decedent regularly and routinely after decedent purchased the property in 1969. They averred that, based upon the surveys, it was apparent to them that a portion of the driveway was located on defendants' property in such a way that persons who used the driveway had to step over the property line onto defendants' property as they entered or exited their cars. The nieces asserted that they had used the driveway and thus stepped over the line in this fashion during their visits to decedent, and that they had seen visitors, guests and decedent's caretakers do so. They further stated that, although decedent did not own a car, her brother resided with her from 1969 until his death in 2004, owned a car that was parked in the driveway daily, and would have been required to step onto defendants' property each time that he entered or exited the vehicle. The nieces averred that persons who used defendants' property to access vehicles in plaintiff's driveway did so openly and with no attempt to hide their actions.

Attached to the nieces' affidavits were two photographs of plaintiff's driveway, revealing that it was comprised of two tire tracks of dirt and gravel on either side of a central grassy area.¹ A post or survey marker that appears to correspond to the corner post shown on the surveys can be seen in the approximate center of the dirt and gravel track on the left. The nieces averred that the pictures depict the driveway as it appeared for at least 30 years. Finally, they stated that they were not aware of any agreement between decedent and any neighbors granting permission to encroach or step on defendants' property.

Plaintiff also submitted an affidavit from its tenant asserting that, after defendants erected the boundary marker, persons using the driveway had difficulty opening and closing car doors without striking the marker, as well as a photograph showing a car parked in the driveway with a partly-open door resting against the marker. Other photographs of cars and trucks parked in the driveway with the boundary marker in place reveal that there was adequate space to permit vehicles to park in the driveway without encroaching on defendants' property, but that the sides of the vehicles were located within a few inches of the marker, thus leaving insufficient room for ingress and egress.

To establish the existence of a prescriptive easement, plaintiff was required to "show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years" ( Gulati v. O'Leary, 125 A.D.3d 1231, 1233, 4 N.Y.S.3d 653 [2015] ; accord Rosenzweig v. Howlan, 166 A.D.3d 1146, 1148, 87 N.Y.S.3d 658 [2018] ). Plaintiff's submissions established that the use of defendants' property by persons who entered and exited vehicles in the encroaching driveway was open and notorious (see Ward v. Warren, 82 N.Y. 265, 267–269 [1880] ; Ciringione v. Ryan, 162 A.D.3d 634, 634–635, 78 N.Y.S.3d 421 [2018] ; Gravelle v. Dunster, 2 A.D.3d 964, 965–966, 768 N.Y.S.2d 240 [2003] ). The submissions likewise established that this use took place continuously for a period of more than 10 years while decedent owned the property. Contrary to defendants' assertion, plaintiff was not required to provide specific dates when the nieces saw persons using the driveway. The nieces' allegations that they, as well as decedent's brother, visitors and caretakers, regularly used the driveway and necessarily stepped on defendants' property while doing so were sufficient to establish that the use was continuous during the 45–year period of decedent's ownership (see e.g. Meyers v. Carey, 75 A.D.3d 949, 949–950, 904 N.Y.S.2d 824 [2010] ; Gorman v. Hess, 301 A.D.2d 683, 685, 754 N.Y.S.2d 393 [2003] ).

Where, as here, continuity and open and notorious use have been proven, " ‘hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive’ " ( Schwengber v. Hultenius, 160 A.D.3d 1083, 1084, 74 N.Y.S.3d 120 [2018], quoting Barra v. Norfolk S. Ry. Co., 75 A.D.3d 821, 823–824, 907 N.Y.S.2d 70 [2010] ). Defendants did not satisfy...