Weinberg v. Shafler

4 Citing cases

  1. 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.

  2. Tonawanda v. Ellicott Assn

    86 A.D.2d 118 (N.Y. App. Div. 1982)   Cited 120 times

    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).

  3. Roslyn Realty & Mgmt. Corp. v. Park East, LLC

    INDEX NO. 7855/11 (N.Y. Sup. Ct. Oct. 13, 2011)

    "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."

  4. Roslyn Realty Mgt. Corp. v. Park East, LLC

    2011 N.Y. Slip Op. 32672 (N.Y. Sup. Ct. 2011)

    "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."