Weinberg v. Shafler

24 Citing cases

  1. 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).

  2. Beutler v. Maynard

    80 A.D.2d 982 (N.Y. App. Div. 1981)   Cited 36 times

    The use need not be constant. It "may be continuous though there are periods of time more or less extended between the specified acts of use" (Restatement, Property, Servitudes, § 459, comment b; compare Weinberg v. Shafler, 68 A.D.2d 944, affd 50 N.Y.2d 876, with Battista v. Pine Is. Park Assn., 28 A.D.2d 714). Here the cabin of plaintiffs Beutler and Randazzo was principally used during the summer months, and they and their predecessors made regular use of the extension as a means of access (see 4 Tiffany, Real Property [3d ed], § 1202; 25 Am Jur 2d, Easements Licenses, § 56). Where such regular seasonal use is made for access to a summer cabin, a landowner may not reasonably believe that a hostile claim is not being asserted.

  3. 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).

  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. Wechsler v. N.Y. State Dept. of Environmental

    193 A.D.2d 856 (N.Y. App. Div. 1993)   Cited 26 times

    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).

  6. 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).

  7. 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).

  8. 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).

  9. Borruso v. Morreale

    129 A.D.2d 604 (N.Y. App. Div. 1987)   Cited 22 times

    We now affirm. An easement by prescription requires proof of the adverse, open, notorious and continuous use of another's land for the prescriptive period (see, Di Leo v Pecksto Holding Corp., 304 N.Y. 505; Susquehanna Realty Corp. v Barth, 108 A.D.2d 909). Under ordinary circumstances an open, notorious, uninterrupted and undisputed use of a right-of-way is presumed to be adverse or hostile, under claim of right, and casts the burden upon the owner of the servient tenement to show that the use was by license (see, Di Leo v Pecksto Holding Corp., supra; Kaufman v Eidelberg, 78 A.D.2d 674, 675; Weinberg v Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876). The record adequately supports the finding that the plaintiffs' use of the right-of-way was open, notorious, uninterrupted and undisputed for well beyond the prescriptive period (cf., Lawrence v Mullen, 40 A.D.2d 871). It was, therefore, presumed to be adverse or hostile, under a claim of right, casting the burden upon the defendants as owners of the servient tenement to show that the use was by license.

  10. Slater v. Ward

    92 A.D.2d 667 (N.Y. App. Div. 1983)   Cited 18 times
    Holding that "[s]easonal use does not negate the ripening of a prescriptive right"

    Here, defendants insist these conditions did not exist from 1956 to 1961, a period sought to be tacked by the county, when defendants' property was owned by the Du Monds' grandson, Gary, and any such use of the right of way during that period could not have been hostile. This contention does no more than rebut the presumption favoring the county's position that where, as here, the use has been shown to be open, continuous and uninterrupted, hostility will be presumed ( Weinberg v. Shafler, 68 A.D.2d 944, affd 50 N.Y.2d 876). Accordingly, the county is placed in the position of establishing the element of hostility for the five-year period from 1956 to 1961 by direct proof.