Prescriptive Easement
This week we wanted to bring your attention to an interesting decision out of the 1st Department which focused on the elements required to establish a Prescriptive Easement.
The relevant facts of, and a link to, the case are set forth below.
In Ciminello Property Associates v. New 970 Colgate Avenue Corp., 2023 NY Slip Op 01230, decided March 9, 2023, the Supreme Court, Bronx County, granted the Defendants' motion for summary judgment dismissing the complaint in an action seeking a declaration that the Plaintiff had a prescriptive easement over Close Avenue. According to the Appellate Division, First Department, in affirming the lower court’s Order,
“Plaintiff failed to establish the requisite elements of exclusivity and hostility required for a prescriptive easement [citation omitted]… [S]ince at least 1999, defendants had controlled access to the south gate at Story Avenue, and that plaintiff and its tenants’ use of the disputed portion of Close Avenue had been permissive [citation omitted]. The testimony of plaintiffs’ tenants further established that they permitted members of the general public to access Close Avenue…[N]othing about plaintiff’s historical use of Close Avenue suggested that it excluded defendants from using the disputed portion of the road, or that its use constituted ‘an actual invasion of or infringement upon the owner’s rights’ so as to raise a question of fact as to the element of hostility [citation omitted].”
This decision is posted at https://www.nycourts.gov/reporter/3dseries/2023/2023_01230.htm
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