Schwengber v. Hultenius

• Decision Date: 05 April 2018
• Docket Number: 524689
• Citation: Schwengber v. Hultenius, 160 A.D.3d 1083, 74 N.Y.S.3d 120 (N.Y. App. Div. 2018)
• Parties: Janet SCHWENGBER et al., Respondents, v. David C. HULTENIUS, Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1083

74 N.Y.S.3d 120

Janet SCHWENGBER et al., Respondents,

v.David C. HULTENIUS, Appellant.

524689

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

Decided and Entered: April 5, 2018

Calendar Date: February 22, 2018

Thomas F. Garner, Middleburgh, for appellant.

Joanne Darcy Crum, Cobleskill, for respondents.

Before: Garry, P.J., McCarthy, Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

McCarthy, J.Appeal from an order of the Supreme Court (Lambert, J.), entered December 23, 2016 in Delaware County, which, among other things, granted plaintiffs' motion for summary judgment.

Plaintiff Janet Schwengber purchased property in 1974 and later deeded the property to herself and plaintiff Maureen Kennedy, who had lived on the property since 1995, as joint tenants. Defendant purchased the neighboring property in 2011. A shared driveway leads from the road onto defendant's property then splits, with one section leading behind defendant's house and the other section leading to a garage on plaintiffs' property. Plaintiffs have each used the shared driveway to reach their garage as long as they have respectively lived at the property. In 1973, one of defendant's predecessors-in-interest granted an express easement to Schwengber's immediate predecessors-in-interest, but that express easement terminated upon the sale of the property to Schwengber.

In 2012, the parties' relationship soured and defendant asked plaintiffs to stop using his driveway by a specified date. Plaintiffs commenced this litigation asserting that they had obtained an easement by prescription and seeking a declaration that defendant may not interfere with their rights to use the driveway. Defendant answered, asserting a counterclaim pursuant to RPAPL article 15. Plaintiffs moved for summary judgment. Defendant cross-moved for summary judgment seeking dismissal of the complaint, removal of encroachments on his property and an order directing plaintiffs to cease using the driveway. Supreme Court granted plaintiffs summary judgment on their two causes of action, dismissed defendant's affirmative defenses and denied his cross motion. Defendant appeals.

Supreme Court erred in granting plaintiffs' motion because triable questions of fact exist regarding the element of hostility. "A party claiming a prescriptive easement must show ... 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] [citations omitted]; see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012] ). Hostility is the only element contested here. Once the other elements of a prescriptive easement are established, "hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive" ( Barra v. Norfolk S. Ry. Co., 75 A.D.3d 821, 823, 907 N.Y.S.2d 70 [2010] ). However, permission can be inferred when "the relationship between the parties is one of neighborly cooperation and accommodation," in which case no presumption of hostility will arise ( Taverni v. Broderick, 111 A.D.3d 1197, 1199, 975 N.Y.S.2d 807 [2013] [internal quotation marks and citation omitted]; accord Gulati v. O'Leary, 125 A.D.3d at 1233, 4 N.Y.S.3d 653 ; Allen v. Mastrianni, 2 A.D.3d 1023, 1024, 768 N.Y.S.2d 523 [2003] ). Moreover, "where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right" ( Barra v. Norfolk S. Ry. Co., 75 A.D.3d at 824, 907 N.Y.S.2d 70 [internal quotation marks, brackets and citation omitted]; accord Penn Hgts. Beach Club, Inc. v. Myers, 42 A.D.3d 602, 606–607, 839 N.Y.S.2d 570 [2007], lv dismissed 10 N.Y.3d 746, 853 N.Y.S.2d 533, 883 N.E.2d 357 [2008] ; Allen v. Mastrianni, 2 A.D.3d at 1024, 768 N.Y.S.2d 523 ). "Generally, the question of implied permission is one for the factfinder to resolve" ( Barra v. Norfolk S. Ry. Co., 75 A.D.3d at 824, 907 N.Y.S.2d 70 [citations omitted]; accord Gulati v. O'Leary, 125 A.D.3d at 1233, 4 N.Y.S.3d 653 ).

Schwengber submitted an affidavit stating that she used the driveway to reach her garage nearly every day since 1974. She averred that she believed that she owned the driveway in common with defendant's predecessors-in-interest, she maintained it and shared snow-removal responsibility with the previous owners of defendant's parcel, and she never asked anyone for permission to use the driveway. Although these averments would generally create a presumption of hostility, Schwengber also...