Weinberg v. Shafler

24 Citing cases

  1. Weinberg v. Shafler

    50 N.Y.2d 876 (N.Y. 1980)   Cited 18 times

    Victor M. Meyers for respondents. Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division ( 68 A.D.2d 944) inasmuch as that view more nearly conforms to the weight of the credible evidence. Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.

  2. Weinberg v. Schafler

    47 N.Y.2d 952 (N.Y. 1979)

    Decided June 7, 1979 Appeal from (3d dept.: 68 A.D.2d 944) MOTIONS FOR STAY

  3. Labarge v. MJB Lake LLC

    220 A.D.3d 1100 (N.Y. App. Div. 2023)   Cited 2 times

    As for plaintiff's claim of a prescriptive easement on the dock lot, such requires proof "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 [3d Dept. 2015] ; seeMastbeth v. Shiel, 218 A.D.3d 987, 988, 194 N.Y.S.3d 338 [3d Dept. 2023] ). There is no dispute that plaintiff used the dock lot to access the camp in an open and notorious manner for the requisite period and, while that fact would ordinarily give rise to a presumption of hostility, such is not the case "where there is a close and cooperative relationship between the record owner and the person claiming [use] through adverse possession" ( Estate of Becker v. Murtagh, 19 N.Y.3d 75, 82, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012] ; seeBekkering v. Christiana, 180 A.D.3d at 1279–1280, 968 N.E.2d 433 ; Weinberg v. Shafler, 68 A.D.2d 944, 945, 414 N.Y.S.2d 61 [3d Dept. 1979], affd 50 N.Y.2d 876, 430 N.Y.S.2d 55, 407 N.E.2d 1351 [1980] ). Defendants demonstrated that such a relationship existed between plaintiff and McCutchen and, indeed, plaintiff acknowledged that she was a "close personal friend" of McCutchen who used and maintained the dock lot with his knowledge and had his "implied" permission to do so.

  4. 315 Main Street Poughkeepsie, LLC v. WA 319 Main, LLC

    62 A.D.3d 690 (N.Y. App. Div. 2009)   Cited 32 times

    Ordered that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Dutchess County, for the entry of a judgment declaring that the plaintiff does not have a prescriptive easement over the property owned by the defendant. An easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period ( see Turner v Baisley, 197 AD2d 681, 682; see also Weinberg v Shafler, 68 AD2d 944, 945, affd 50 NY2d 876; Hassinger v Kline, 110 Misc 2d 147, 148-149, affd 91 AD2d 988), which is 10 years ( see RPAPL 501). Where the use has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the alleged prescriptive easement to show that the use was permissive ( see Frumkin v Chemtop, 251 AD2d 449; Turner v Baisley, 197 AD2d at 682; Wechsler v New York State Dept. of Enutl Conservation, 193 AD2d 856, 859-860).

  5. Sugarman v. Malone

    30 A.D.3d 197 (N.Y. App. Div. 2006)   Cited 3 times

    In 2004, Malone served a notice to quit on plaintiff, allegedly after unsuccessful negotiations involving her purchase of the apartment from him, and he commenced a Civil Court holdover proceeding against her in 2005; shortly thereafter, plaintiff commenced the instant declaratory judgment action claiming title by reason of adverse possession. The motion court denied plaintiff's motion to stay the holdover proceeding and enjoin other acts by defendants prejudicial to her occupancy of the apartment, holding that she was not entitled to a presumption of hostility because she and the apartment's owners were family members (citing, inter alia, Weinberg v. Shafler, 68 AD2d 944, affd 50 NY2d 876), and that her claim of title by adverse possession was otherwise conclusory. While plaintiff and Malone, whose spouses were siblings, may not be related to each other in any conventional sense, any presumption of hostility to which plaintiff is entitled by reason of the fact that her occupancy was open, continuous and uninterrupted for at least 10 years is rebutted by the fact that she was the prior owner's daughter-in-law, and that her occupancy of the apartment from 1984 to 1995 was apparently with his permission ( cf. id. at 945).

  6. Tarr v. Delsener

    19 A.D.3d 548 (N.Y. App. Div. 2005)   Cited 34 times

    Further, the Supreme Court denied both the plaintiff's cross motion for summary judgment and the defendants' cross motion for partial summary judgment as it determined that questions of fact existed regarding the "necessary element of continuous use for the ten-year prescriptive period." An easement by prescription is demonstrated by proof of the "adverse, open and notorious, continuous and uninterrupted [use of the property] for the prescriptive period" ( Di Leo v. Pecksto Holding Corp., 304 NY 505, 512; see Hryckowian v. Pulaski, 249 AD2d 511, 512). Generally, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive ( see Frumkin v. Chemtop, 251 AD2d 449; Hryckowian v. Pulaski, supra; Weinberg v. Shafler, 68 AD2d 944, affd 50 NY2d 876). The defendants correctly assert that the evidence submitted on the parties' cross motions established, as a matter of law, that the plaintiff failed to acquire an easement by prescription to use two additional feet on either side of the deeded 10-foot wide easement providing ingress and egress from Middle Lane ( see Wechsler v. People, 13 AD3d 941, 944; Aubuchon Realty Co. v. Cohen, 294 AD2d 738, 739-740).

  7. Albright v. Beesimer

    288 A.D.2d 577 (N.Y. App. Div. 2001)   Cited 25 times
    Explaining that a conversation the parties had in which they agreed that the plaintiffs could use the land in dispute was "an acknowledgment defeats the claim of adverse possession"

    We note that Supreme Court did not discuss this element in its oral decision on the matter. Given the sibling relationship between John Albright and defendant, plaintiffs' open and continuous use of the disputed property as their front yard between 1986 and 1998 did not give rise to a presumption of hostility, as is usually the case in adverse possession matters (see, e.g., McNeill v. Shutts, 258 A.D.2d 695, 696; Turner v. Baisley, 197 A.D.2d 681, 682; Weinberg v. Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876; compare, Led Duke v. Sommer, 205 A.D.2d 1009). Thus, plaintiffs were required to "come forward with affirmative facts to establish that the use was under a claim of right and adverse to the interests of [defendant]" (McNeill v. Shutts, supra, at 696; see, Turner v. Baisley, supra; Wechsler v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 856, 869, lv denied 82 N.Y.2d 656; Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., 192 A.D.2d 501, 503).

  8. McNeill v. Shutts

    258 A.D.2d 695 (N.Y. App. Div. 1999)   Cited 25 times

    was for the benefit of their real property and was adverse, open and notorious, continuous and uninterrupted for the prescriptive period" ( Bova v. Vinciguerra, 184 A.D.2d 934; see, Wechsler v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 856, 859, lv denied 82 N.Y.2d 656; Epstein v. Rose, 101 A.D.2d 646, 647, lv denied 64 N.Y.2d 611). Generally, proof of open, notorious, continuous and undisputed use gives rise to a presumption that the use was hostile, thereby shifting the burden to the servient landowner to demonstrate that the use was permissive ( see, Wechsler v. New York State Dept. of Envtl. Conservation, supra, at 859-860; City of Tonawanda v. Ellicott Creek Homeowners Assn., 86 A.D.2d 118, 121, appeal dismissed 58 N.Y.2d 824; Beutler v. Maynard, 80 A.D.2d 982, 983, affd 56 N.Y.2d 538). This presumption, however, is not applicable where the user and servient landowner are related by blood ( see, Wechsler v. New York State Dept. of Envtl. Conservation, supra, at 860; Weinberg v. Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876) or where their relationship "was one of cooperation and neighborly accomodation" ( Susquchanna Realty Corp. v. Barth, 108 A.D.2d 909, 910). In such case, the user must come forward with affirmative facts to establish that the use was under a claim of right and adverse to the interests of the landowner ( see, Wechsler v. New York State Dept. of Envtl. Conservation, supra, at 860; Susquchanna Realty Corp. v. Barth, supra, at 910).

  9. Frumkin v. Chemtop

    251 A.D.2d 449 (N.Y. App. Div. 1998)   Cited 24 times

    Generally, an easement by prescription is demonstrated by proof of the "adverse, open and notorious, continuous, and uninterrupted [use of the property] for the prescriptive period" ( Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512; Hryckowian v. Pulaski, 249 A.D.2d 511). It is well established that where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive ( see, Hryckowian v. Pulaski, supra; Weinberg v. Shafler, 68 A.D.2d 944, affd 50 N.Y.2d 876; Hassinger v. Kline, 110 Misc.2d 147, 149, affd 91 A.D.2d 988). While there was evidence in the present case that the plaintiffs use of a driveway area, a portion of which was located on the defendants' property, was open, notorious, continuous, and undisputed, the defendants showed by admissible evidence that the plaintiffs use of the purported easement was permitted as a matter of willing accord and neighborly accommodation ( see, Hryckowian v. Pulaski, supra; Wechaler v. NewYork State Dept. of Envtl. Conservation, 193 A.D.2d 856, 859).

  10. Duke v. Sommer

    205 A.D.2d 1009 (N.Y. App. Div. 1994)   Cited 18 times

    Plaintiffs' proof, therefore, raises the presumption that their use of the property was hostile and under a claim of right, placing the burden on defendant to show that the use was by license (see, Sleasman v. Williams, 187 A.D.2d 852, supra; Borruso v. Morreale, 129 A.D.2d 604, 605). Defendant's proof does not negate the presumption of hostility (cf., Weinberg v. Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876). Defendant relies on a statement made by plaintiff Lillian Led Duke (hereinafter Led Duke) at her deposition to prove that plaintiffs did not show that their use of the property was hostile.