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.
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).
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.
btedly, the proponent of a prescriptive easement claim bears the burden of proving, by clear and convincing evidence, hostile, open, notorious and continuous use over the other's land for the prescriptive period (see, e.g., Hamilton v Kennedy, 168 A.D.2d 717, lv denied 77 N.Y.2d 808; Kusmierz v Baan, 144 A.D.2d 829; Susquehanna Realty Corp. v Barth, 108 A.D.2d 909). While, in general, proof of open, notorious, continuous and undisputed use gives rise to a presumption that the use was hostile and shifts to the opponent the burden of coming forward with evidence that the use was permissive or by license (see, e.g., Kusmierz v Baan, supra, at 830), in situations where it is shown that the user and the landowner are related by blood or part of a select group of friends, the proponent is not accorded the benefit of the presumption and must present affirmative facts to support the conclusion that his or her use was under a claim of right and adverse to the interests of the landowner (see, Weinberg v Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876; see also, Sleasman v Williams, 187 A.D.2d 852; Esposito v Stackler, 160 A.D.2d 1154; cf., Susquehanna Realty Corp. v Barth, supra, at 909-910). Here, inasmuch as the record evidence establishes that Philwold was owned by a family partnership of which plaintiff formerly was a member until his retirement in 1968 and that he admittedly used the footbridge permissively since its erection, we find that ample evidence exists to negate the presumption of hostility (see, Weinberg v Shafler, supra).
The elements of an easement by prescription are similar although demonstration of exclusivity is not essential ( Di Leo v. Pecksto HoldingCorp., 304 N.Y. 505, 512; Weinberg v. Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876). In either case where all of the other elements are established by the one claiming title or easement under adverse possession or user, the first element of hostile possession or user will be presumed and the burden shifts to the record owner to produce evidence rebutting the presumption of adversity (RPAPL 521; Di Leo v. Pecksto Holding Corp., supra; Beutler v. Maynard, 80 A.D.2d 982, affd 56 N.Y.2d 538; Village of Schoharie v. Coons, 34 A.D.2d 701, affd 28 N.Y.2d 568; Weil v Snyder, 25 A.D.2d 605).
But even if the Court were to conclude that all of the other required elements have been sufficiently shown, the plaintiffs still could not take advantage of the presumption to establish the element of hostile occupation in this case. First, appeal to the presumption would seem to be ruled out by the simple fact that the prior owners of the parcels, Patrick George's father and Francis P. George, were blood relatives (Estate of Becker, supra; McNeill v. Shutts, 258 A.D.2d 695, 696 [3rd Dept., 1999]; Weinberg v. Shafler, 68 A.D.2d 944 [3rd Dept., 1979], affirmed 50 N.Y.2d 876 [1980]). Second, there is evidence in the record of "a close and cooperative relationship" existing among the property owners with regard to the use of the strip.
"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." (315 Main St. Poukeepsie, LLC v. WA 319 Main, LLC, 62 AD3d 690, citing Turner v. Baisley, 197 AD2d 681; Weinberg v. Shafler, 68 AD2d 944; and Hassinger v. Kline, 110 Misc2d 14.) "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."
"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." ( 315 Main St. Poukeepsie, LLC v. WA 319 Main, LLC, 62 AD3d 690, citing Turner v. Baisley, 197 AD2d 681; Weinberg v. Shafler, 68 AD2d 944; and Hassinger v. Kline, 110 Misc2d 14.) "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."