Opinion
No. 9118.
October 5, 2006.
Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered April 7, 2005, which, after a nonjury trial, declared plaintiff not entitled to prescriptive easements over two areas of defendant's property for pedestrian and vehicular use, unanimously affirmed, without costs.
Before: Tom, J.P., Saxe, Friedman, Catterson and McGuire, JJ.
Plaintiff failed to prove the elements of a prescriptive easement by clear and convincing evidence ( see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159). Absent any proof that plaintiff's use of the disputed area of Hillman Park and Broome Street was open, notorious, continuous and under a claim of right, there is no presumption that such use was adverse or hostile — necessary for a finding of a prescriptive easement — and the burden thus never shifted to defendant property owner to show that the use was instead permissive ( Rivermere Apts. v Stoneleigh Parkway, 275 AD2d 701, 702). On the contrary, the evidence revealed that the relationship between the parties, both of whom were members of Co-Op Village, was one of neighborly cooperation and accommodation, thus giving rise to the inference that the use of the disputed areas was indeed permissive ( see Allen v Mastrianni, 2 AD3d 1023, 1024; Bookchin v Maraconda, 162 AD2d 393, 394). Nor did plaintiff prove that its payment to the shared management of Co-Op Village constituted payment for upkeep to the disputed areas in such a manner as to create a prescriptive easement. The judgment was supported by a fair interpretation of the evidence, particularly where the credibility of witnesses was central to the case ( Saperstein v Lewenberg, 11 AD3d 289), and should not be disturbed. We note that defendant concedes the existence of a pedestrian easement, the scope of which is not before us and which must be determined in further proceedings in Supreme Court.