Opinion
July 17, 1995
Appeal from the Supreme Court, Rockland County (Miller, J.).
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
The plaintiffs assert an easement by prescription over a driveway on the property of the defendant Aurelia Holmes, which Mrs. Holmes and her late husband built adjacent to a driveway on the plaintiffs' property. The plaintiffs failed to establish their entitlement to summary judgment (see, Jacobs v. Lewicki, 12 A.D.2d 625, affd 10 N.Y.2d 778; Kopp v. Niemetz, 11 A.D.2d 739). There is an issue of fact as to whether any apparently adverse use by the plaintiffs' predecessors in interest was permissive in character (see, Van Deusen v. McManus, 202 A.D.2d 731; 2239 Hylan Blvd. Corp. v. Saccheri, 188 A.D.2d 524; Boumis v. Caetano, 140 A.D.2d 401; Susquehanna Realty Corp. v. Barth, 108 A.D.2d 909; Hassinger v. Kline, 91 A.D.2d 988).
The fact that the defendant Aurelia Holmes and the plaintiffs' predecessors in interest shared the cost of repairs of the driveway can give rise to differing inferences, depending upon circumstances (see, 2239 Hylan Blvd. Corp. v. Saccheri, supra; Cannon v. Sikora, 142 A.D.2d 662), which were not developed in this record.
We note that the applicability of CPLR 4519 to certain evidence in the record need not be determined at this juncture (see, Phillips v. Kantor Co., 31 N.Y.2d 307; McEvoy v. Garcia, 114 A.D.2d 401; Tancredi v. Mannino, 75 A.D.2d 579).
In light of the conflicting evidence in the record as to the nature of the plaintiffs' use of the driveway, neither the plaintiffs nor the defendants are entitled to summary judgment. Miller, J.P., Altman, Goldstein and Florio, JJ., concur.