Affirming the judgment pursuant to Real Property Actions and Proceedings Law (RPAPL) article 15, the Second Department determined plaintiff (Colin Realty) demonstrated the use of its land by neighboring property owners over the years was permissive, not hostile. Therefore no easement by prescription had been created and plaintiff could properly prohibit defendants’ use of the land:
“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” … . In general, “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” … . This presumption, however, does not arise “when the parties’ relationship was one of neighborly cooperation or accommodation” … . Similarly, the presumption of hostility is inapplicable when the use by the claimant is not “exclusive” … . In this regard, ” exclusivity’ is not established where [a claimant’s] use is in connection with the use of the owner and the general public” … .
Here, while … it appears undisputed that the defendants’ traversing of Colin Realty’s lot was open, notorious, and continuous for the prescriptive period, the court properly determined that the presumption of hostility did not arise. Fred Colin, the manager of Colin Realty, testified that he permitted such use to [defendant] Fradler and the public at large as a matter of willing accord and neighborly accommodation. He further explained how he had, over the years, protected Colin Realty’s ownership interest when others had abused the permission he afforded. Colin Realty Co., LLC v Manhasset Pizza, LLC, 2016 NY Slip Op 01633, 2nd Dept 3-9-16
REAL PROPERTY (EASEMENT BY PRESCRIPTION NOT CREATED, USE WAS PERMISSIVE NOT HOSTILE)/EASEMENTS (EASEMENT BY PRESCRIPTION NOT CREATED, USE WAS PERMISSIVE NOT HOSTILE)