OLD TOWN TREE FARM INC v. LONG ISLAND POWER AUTHORITY

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Supreme Court, Appellate Division, Second Department, New York.

OLD TOWN TREE FARM, INC., respondent, v. LONG ISLAND POWER AUTHORITY, et al., appellants.

-- December 05, 2012

ANITA R. FLORIO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ. Cullen and Dykman, LLP, Garden City, N.Y. (Peter J. Mastaglio of counsel), for appellants. William R. Garbarino, Sayville, N.Y. (Donald R. Hamill of counsel), for respondent.

In an action pursuant to Real Property and Proceedings Law article 15 to compel the determination of claims to real property, the defendants appeal from an order of the Supreme Court, Suffolk County (Martin, J.), entered August 16, 2011, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

A party claiming entitlement to an easement by prescription must demonstrate the adverse, open and notorious, and continuous use of the subject property for the prescriptive period (see Vitiello v. Merwin, 87 AD3d 632, 633; Manouselis v. Woodworth Realty, LLC, 83 AD3d 801). “Absolute necessity in fact is the standard for a finding of an easement by necessity” (Michalski v. Decker, 16 AD3d 469, 470; see Town of Pound Ridge v. Golenbock, 264 A.D.2d 773, 774; Van Schaack v. Torsoe, 161 A.D.2d 701, 703; McQuinn v. Tantalo, 41 A.D.2d 575).

Here, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by conclusively negating any one of the elements of an easement by prescription which, if proven at trial, would warrant the recognition of an easement by prescription (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Manouselis v. Woodworth Realty, LLC, 83 AD3d 801; Mee Wah Chan v. Y & Dev. Corp., 82 AD3d at 943; Bova v. Vinciguerra, 184 A.D.2d 934, 934–935; cf. Charlebois v. Lobe–A Prop. Owners, 193 A.D.2d 916, 917). The defendants also failed to make a prima facie showing of entitlement to judgment as a matter of law by conclusively negating any one of the elements of an easement by necessity which, if proven at trial, would warrant the recognition of such an easement (cf. Almeida v. Wells, 74 AD3d 1256, 1259; Astwood v. Bachinsky, 186 A.D.2d 949, 950).

Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853; Starkey v. Curry, 94 AD3d 866, 867).

The parties' remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

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