Nor did the plaintiff's moving papers establish plaintiffs entitlement to summary judgment on its pleaded claims for a declaration that the plaintiff is the owner of a prescriptive or other easement over the disputed lands (Forsythe v Clauss, 242 AD2d 364, 66 1 NYS2d 1004; Glennon v Mayo, 221 AD2d 504,633 NYS2d 400; 2239 Hylan Boulevard Corp. v Saccheri, 188AD2d 524, 591 NYS2d 427).
945 N.Y.S.2d 196, 968 N.E.2d 433 ). "[T]o establish the hostility element, the party asserting the adverse possession claim must ‘come forward with affirmative facts to establish that the use [of the property] was under a claim of right and adverse to the interests of [the true owner]’ " (id. at 82, 945 N.Y.S.2d 196, 968 N.E.2d 433, quoting Albright v. Beesimer, 288 A.D.2d 577, 578, 733 N.Y.S.2d 251 ). "[W]hen the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner" (Hinkley v. State of New York, 234 N.Y. 309, 316, 137 N.E. 599 ; see Goldschmidt v. Ford St., LLC, 58 A.D.3d 803, 805, 872 N.Y.S.2d 493 ; Koudellou v. Sakalis, 29 A.D.3d at 640, 814 N.Y.S.2d 730 ; Kings Park Yacht Club, Inc. v. State of New York, 26 A.D.3d 357, 809 N.Y.S.2d 551 ; Forsyth v. Clauss, 242 A.D.2d 364, 661 N.Y.S.2d 1004 ; Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., 192 A.D.2d at 503, 596 N.Y.S.2d 435 ). Such permission can be express or implied (see Goldschmidt v. Ford St., LLC, 58 A.D.3d at 805, 872 N.Y.S.2d 493 ; Koudellou v. Sakalis, 29 A.D.3d at 641, 814 N.Y.S.2d 730 ; Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., 192 A.D.2d at 503, 596 N.Y.S.2d 435 ), and "if the first possession is by permission it is presumed to so continue until the contrary appears" (Hinkley v. State of New York, 234 N.Y. at 317, 137 N.E. 599 ).
r elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity” ( United Pickle Prods. Corp. v. Prayer Temple Community Church, 43 A.D.3d 307, 309, 843 N.Y.S.2d 1; see Bratone v. Conforti–Brown, 79 A.D.3d at 957, 913 N.Y.S.2d 762; Harbor Estates Ltd. Partnership v. May, 294 A.D.2d 399, 400, 742 N.Y.S.2d 347). However, as explained by the Court of Appeals, “[w]hen the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner” ( Hinkley v. State of New York, 234 N.Y. 309, 316, 137 N.E. 599; see Goldschmidt v. Ford St., LLC, 58 A.D.3d 803, 872 N.Y.S.2d 493; Koudellou v. Sakalis, 29 A.D.3d at 640, 814 N.Y.S.2d 730; Kings Park Yacht Club, Inc. v. State of New York, 26 A.D.3d 357, 809 N.Y.S.2d 551; Forsyth v. Clauss, 242 A.D.2d 364, 661 N.Y.S.2d 1004). In support of his motion, Witts primarily relied upon Vitale's deposition transcript, contending, among other things, that Vitale's possession of the premises was not hostile.
ll v Sinclaire, 35 AD3d 660, 662). "Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity" ( United Pickle Prods. Corp. v Prayer Temple Community Church, 43 AD3d 307, 309; see Harbor Estates Ltd. Partnership v May, 294 AD2d 399, 400; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118). However, as explained by the Court of Appeals, "[w]hen the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner" ( Hinkley v State of New York, 234 NY 309, 316 [1922]; see Goldschmidt v Ford St., LLC, 58 AD3d 803, 805; Koudellou v Sakalis, 29 AD3d at 640; Kings Park Yacht Club, Inc. v State of New York, 26 AD3d 357; Forsyth v Clauss, 242 AD2d 364; Congregation Yetev Lev D'Satmar v 26 Adar NB. Corp., 192 AD2d at 503). Such permission can be express or implied ( see Goldschmidt v Ford St., LLC, 58 AD3d at 805; Koudellou v Sakalis, 29 AD3d at 641; Congregation Yetev Lev D'Satmar v 26 Adar NB. Corp., 192 AD2d at 503).
Instead, the judgment merely enjoined the defendants from interfering with the plaintiffs' use of the driveway strip. Since this is, inter alia, a declaratory judgment action, the Supreme Court should have declared that the plaintiffs have an easement by prescription over the driveway strip in addition to enjoining the defendants ( see Lanza v. Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901; Di Leo v. Pecksto Holding Corp., supra; Asche v. Land Bldg. Known as 64-29 232nd St., 12 AD3d 386; Avraham v. Lakeshore Yacht Country Club, 278 AD2d 842; Fulgenzi v. Rink, 253 AD2d 846; Forsyth v. Clauss, 242 AD2d 364; Duke v. Sommer, 205 AD2d 1009; Reed v. Piedimonte, 138 AD2d 937). The defendants' remaining contentions are without merit.
Where, as here, defendant possesses record title of the disputed property, plaintiffs had to establish, inter alia, that their possession of the disputed property was "hostile and under claim of right" ( Brand v. Prince, 35 N.Y.2d 634, 636; see, Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 159). Defendant established that the use of the property by plaintiffs and Allied was with the permission of defendant and was therefore not adverse ( see, 262-64 Higbie Lane v. Town Bd., 267 A.D.2d 377, 378, lv denied 95 N.Y.2d 752; Forsyth v. Clauss, 242 A.D.2d 364), and plaintiffs failed to raise a triable issue of fact. Plaintiffs argue that defendant's title was extinguished based on the use of the property by plaintiffs' predecessors from 1947 until 1983 and that the vested title in plaintiffs' predecessors was not thereafter transferred to defendant based on Allied's permissive use ( see, e.g., Ahl v. Jackson, 272 A.D.2d 965).
"When the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner" (Hinkley v State of New York, 234 NY 309, 316, 137 NE 599 [1922]; see Vitale v Witts, 93 AD3d 714, 715-716, 940 NYS2d294 [2d Dept 2012]; Goldschmidt v Ford St., LLC, 58 AD3d 803, 872 NYS2d 493 [2d Dept 2009]; Koudellou v Sakalis, 29 AD3d at 640, 814 NYS2d 730 [2d Dept 2006]; Kings Park Yacht Club, Inc. v State of New York, 26 AD 3d 357, 809 NYS2d 551 [2d Dept 2006]; Forsyth v Clauss, 242 AD2d 364, 661 NYS2d 1004 [2d Dept 1997]).