SCHWARTZBERG v. SHEK CHEUNG LUI (2001)

In an action, inter alia, to recover damages for trespass, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered October 5, 1999, which, in effect, granted the defendant's motion made at the close of the plaintiff's case to dismiss the complaint for failure to establish a prima facie case.

ORDERED that the order is affirmed, with costs.

 The burden of establishing ownership of the subject driveway was upon the plaintiff (see, Duggan v. Hyland, 50 A.D.2d 1066, 376 N.Y.S.2d 49;  Judd v. Chilson, 177 App.Div. 121, 163 N.Y.S. 695).   The plaintiff attempted to establish his case through the use of two surveys.   The first survey did not establish that the driveway, used by both the plaintiff and the defendants, encroached upon the plaintiff's property.   The second survey was a copy of a survey obtained by the defendants which the plaintiff attached to letters he sent to the defendants.   That survey was not admitted into evidence for the truth of its contents because the plaintiff did not establish that it satisfied an exception to the hearsay rule.   Moreover, the plaintiff failed to establish that he suffered any damages (see, Dellaportas v. County of Putnam, 240 A.D.2d 358, 658 N.Y.S.2d 116).   Accordingly, the Supreme Court properly dismissed the complaint.

MEMORANDUM BY THE COURT.