SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

986 

CA 11-00391 

PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ. 

 

KING’S COURT RESTAURANT, INC., 

PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

HURONDEL I, INC., DEFENDANT-APPELLANT.

 

THE KNOER GROUP, PLLC, BUFFALO (ROBERT E. KNOER OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BRIAN J. RUFFINO, BUFFALO, FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Joseph R.

Glownia, J.), entered April 27, 2010 in a declaratory judgment action. 

The order denied the motion of defendant for summary judgment

dismissing the complaint and for a declaratory judgment to quiet

title. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted,

the complaint is dismissed and judgment is granted in favor of

defendant as follows:

It is ORDERED, ADJUDGED and DECREED that plaintiff has

no title by adverse possession and/or easement by

prescription over the adjacent portion of defendant’s

property in question.

Memorandum: Plaintiff commenced this action seeking a

declaration that it has obtained title by adverse possession and/or

easement by prescription over a portion of defendant’s property that

is adjacent to plaintiff’s property. Supreme Court erred in denying

defendant’s motion for summary judgment dismissing the complaint and 

for a declaratory judgment on its counterclaim to quiet title. We

therefore reverse. 

In cases involving title by adverse possession and/or easement by

prescription, an established record owner of the disputed property is

“entitled to summary judgment unless the [opposing party] can

demonstrate [its] rights by competent evidence or at least raise a

factual issue regarding [its] claim to title through adverse

possession or prescriptive easement” (City of Tonawanda v Ellicott Cr.

Homeowners Assn., 86 AD2d 118, 120, appeal dismissed 58 NY2d 824). 

“ ‘To acquire title to real property by adverse possession . . . the
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CA 11-00391 

possessor . . . [must] establish that the character of the possession

is hostile and under a claim of right, actual, open and notorious,

exclusive and continuous . . . for the statutory period of 10 years’ ”

(Dekdebrun v Kane, 82 AD3d 1644, 1646). “The elements of an easement

by prescription are similar although demonstration of exclusivity is

not essential” (Ellicott Cr. Homeowners Assn., 86 AD2d at 120; see Di

Leo v Pecksto Holding Corp., 304 NY 505, 511-512). 

Here, defendant met its initial burden on its motion by

submitting uncontroverted documentary evidence that it is the record

owner of the property to which plaintiff claims to have obtained title

by adverse possession and/or prescriptive easement. The burden thus

shifted to plaintiff to “demonstrate [its] rights by competent

evidence or at least raise a factual issue regarding [its] claim to

title through adverse possession or prescriptive easement” (Ellicott

Cr. Homeowners Assn., 86 AD2d at 120), and plaintiff failed to meet

that burden. Defendant established that neither plaintiff nor its

predecessors in interest could have possessed or used the area in

question in a continuous and uninterrupted manner and, with respect to

adverse possession, in an exclusive manner, over the course of any 10-

year period. Defendant is correct that there is no evidence that

plaintiff’s predecessors in interest used the alleged easement before

plaintiff obtained the property in 1979. Defendant further

established that part of a gas station covered a portion of the

alleged easement until at least 1986 and that, from at least 1995

onward, vehicles with no affiliation to plaintiff have been parked on

the alleged easement. Inasmuch as defendant’s evidence illustrated

the absence of both an uninterrupted 10-year period of possession or

use for 10 years, exclusive or otherwise, defendant established its

entitlement to a declaration in its favor on both the adverse

possession and prescriptive easement claims as a matter of law.

We note that, in opposition to the motion, plaintiff submitted

affidavits from two of its corporate officers and two neighboring

business owners merely stating in a conclusory manner that plaintiff

exercised uninterrupted, open, continuous, hostile, and adverse use

and possession of the disputed area for over 10 years. Because those

affidavits simply recited the legal elements of an easement but did

not place them in the context of the facts of this case, they failed

to raise any issues of fact for purposes of defeating defendant’s

motion (see Villager Constr. v J. Kozel & Son, 222 AD2d 1018; Ellicott

Cr. Homeowners Assn., 86 AD2d at 122-123). Additionally, the

affidavit submitted by one of the neighboring business owners was

insufficient to raise an issue of fact to defeat the motion because it

was based upon information and belief rather than personal knowledge

(see Anderson v Livonia, Avon & Lakeville R.R. Corp., 300 AD2d 1134,

1135; Wood v Nourse, 124 AD2d 1020, 1021).

Because defendant established its entitlement to judgment as a

matter of law on plaintiff’s adverse possession and prescriptive 
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CA 11-00391 

easement claims, defendant is entitled to a declaration in its favor.

Entered: September 30, 2011 Patricia L. Morgan

Clerk of the Court