JOY BUILDERS INC v. SHAPIRO (2008)

In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that the plaintiff has an easement by implication over a portion of the defendants' property, the defendants appeal from an order of the Supreme Court, Rockland County (Sherwood, J.), dated December 13, 2007, which granted the plaintiff's renewed motion for summary judgment.

ORDERED that the order is reversed, on the law, with costs, and the renewed motion for summary judgment is denied.

The plaintiff claims, inter alia, that it has an easement by implication over a paper road that crosses the defendants' property, in order to access an intersecting public road.   It was incumbent upon the plaintiff to make a prima facie showing, by clear and convincing evidence, that it was the intent of the original grantor, at the time of the original conveyance, to create the subject easement (see H.S. Farrell, Inc. v. Formica Constr. Co., Inc., 41 A.D.3d 652, 654, 838 N.Y.S.2d 628;  Michalski v. Decker, 16 A.D.3d 469, 470, 792 N.Y.S.2d 103;  Asche v. Land & Bldg. Known as 64-29 232nd St., 12 A.D.3d 386, 387, 784 N.Y.S.2d 577;  Palma v. Mastroianni, 276 A.D.2d 894, 894, 714 N.Y.S.2d 537).   The plaintiff failed to make that showing.   Accordingly, its renewed motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of the foregoing, we need not address the parties' remaining contentions.