State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 26, 2015 518716 

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KRISHAN G. GULATI, as Trustee

of the February 15, 2002

Charlotte E. Gulati,

Beekmantown, QPRT,

Respondent,

v MEMORANDUM AND ORDER

BRIAN O'LEARY et al.,

Appellants.

________________________________

Calendar Date: January 13, 2015

Before: Peters, P.J., Rose, Egan Jr. and Clark, JJ.

__________

Schneider & Palcsik, Plattsburgh (Mark Schneider of

counsel), for appellants.

Stafford Law Office, Plattsburgh (Thomas M. Murnane of

counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the Supreme Court (McGill, J.),

entered June 10, 2013 in Clinton County, which granted

plaintiff's motion for a directed verdict.

The parties own adjoining properties on Lake Champlain in

the Town of Beekmantown, Clinton County. Plaintiff – in his

individual capacity – and his wife purchased the property now

held by the February 15, 2002 Charlotte G. Gulati, Beekmantown,

QPRT (hereinafter the Trust) in 1986, and the Trust rents the

summer cottage located on the property to seasonal tenants. In

order to reach the cottage, the tenants use a driveway on the
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adjoining property. Defendants purchased this adjoining property

in 2005 and sought to stop the Trust's tenants from using the

driveway, eventually erecting a fence to block access from their

property to the Trust's cottage. Relying on language in the 1986

deed to plaintiff in his individual capacity and his wife

granting a right-of-way over "the usual traveled road," which

mirrors the language of an easement granted in 1937 to the

original titleholders of one of the three parcels comprising the

Trust's property (hereinafter the lakefront parcel), plaintiff

commenced this action pursuant to RPAPL article 15 seeking a

declaration that the property owned by the Trust has either a

deeded right-of-way over defendants' property or, in the

alternative, a prescriptive easement. Defendants counterclaimed

to quiet title and for ejectment and intentional trespass. 

After joinder of issue and discovery, plaintiff moved for

summary judgment on its causes of action to declare the existence

of a right-of-way over defendants' property or for a prescriptive

easement. Defendants opposed the motion and cross-moved for

summary judgment on their counterclaims. Supreme Court noted

that the expert submissions from both parties recognized the

existence of two rights-of-way benefitting the Trust property. 

Based on the competing expert opinions as to the location of "the

usual traveled road," however, the court found a triable issue of

fact as to whether the relevant deeded right-of-way was located

on defendants' property. The court partially granted plaintiff's

motion for summary judgment on his claim for a deeded right-ofway by establishing the existence of a grant of such a right-ofway from the lakefront parcel to the nearest public highway and

first appearing in the chain of title in 1937, finding a triable

issue as to the location of this right-of-way in relation to the

parties' respective properties and denying defendants' cross

motion. The matter then proceeded to a jury trial and, at the

conclusion of all the evidence, plaintiff moved for a directed

verdict on the prescriptive easement cause of action. Supreme

Court granted the motion, leaving the question of the location of

the deeded right-of-way unanswered. The court then entered a

judgment and defendants now appeal, arguing that the motion for a

directed verdict should have been denied and that their cross
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motion for summary judgment should have been granted.1

We cannot agree with defendants' contention that their

cross motion for summary judgment dismissing plaintiff's claim

for a prescriptive easement should have been granted. A party

claiming a prescriptive easement must show, by clear and

convincing evidence, that the use of the easement was open,

notorious, hostile and continuous for a period of 10 years (see

Ward v Murariu Bros., Inc., 100 AD3d 1084, 1085 [2012]; Nixon v

Morris, 91 AD3d 1170, 1171 [2012]; Estate Ct., LLC v Schnall, 49

AD3d 1076, 1077 [2008]). Although the element of hostility is

presumed upon a showing of the other elements, where "the

relationship between the parties is one of neighborly cooperation

and accommodation," no such presumption arises and, rather,

permission will be inferred (Allen v Mastrianni, 2 AD3d 1023,

1024 [2003]; accord Taverni v Broderick, 111 AD3d 1197, 1199

[2013]). "Generally, the question of implied permission is one

for the factfinder to resolve" (Barra v Norfolk S. Ry. Co., 75

AD3d 821, 824 [2010] [citations omitted]). 

Here, the evidence submitted on the summary judgment

motions indicates that a neighborly relationship existed between

plaintiff, individually, the Trust's tenants and defendants'

predecessors in title. However, inasmuch as there is no evidence

of express permission granted to use defendants' property, and

the relevant parties are not "related by blood or part of a

select group of friends," summary judgment dismissing the claim

for a prescriptive easement on the ground that plaintiff was

unable to establish hostility was not warranted (id. at 824

[internal quotation marks and citation omitted]; see Lew Beach

Co. v Carlson, 77 AD3d 1127, 1129 [2010]; Barlow v Spaziani, 63

AD3d 1225, 1226-1227 [2009]). 

1 Although plaintiff argues that defendants did not appeal

the order that determined the motions for summary judgment, their

appeal from the final judgment brings that order up for review

(see CPLR 5501 [a] [1]; Windsearch, Inc. v Delafrange, 90 AD3d

1223, 1223 n 1 [2011]).
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On the other hand, by the same reasoning, we must agree

with defendants that the motion for a directed verdict granting

plaintiff a prescriptive easement should have been denied. 

Inasmuch as the evidence at trial also revealed that plaintiff,

individually, the Trust's tenants and defendants' predecessors in

title were neighborly in their dealings with respect to the

driveway, we cannot say that "there is no rational process by

which the fact trier could base a finding in favor of the

nonmoving party" (Gold v Di Cerbo, 41 AD3d 1051, 1052 [2007], lv

denied 9 NY3d 811 [2007], quoting Szczerbiak v Pilat, 90 NY2d

553, 556 [1997]; see CPLR 4401). 

Although defendants also contend that they were entitled to

summary judgment dismissing plaintiff's request for a declaration

of a deeded right-of-way, their own expert recognizes the

existence of such an easement, but opines that it is not located

on defendants' property. Based on the competing expert opinions

as to whether the right-of-way is located on defendants'

property, triable issues of fact exist as to its location (see

Kennedy v Nimons, 121 AD3d 1229, 1231 [2014]; Gholizadeh v

Keifer, 66 AD3d 1209, 1210-1211 [2009]). Defendants' remaining

contentions have been considered and determined to be unavailing. 

Peters, P.J., Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is reversed, on the law, with

costs, motion denied and matter remitted to the Supreme Court for

a new trial.

ENTER:

Robert D. Mayberger

Clerk of the Court