KOUDELLOU v. SAKALIS (2006)

In an action for a judgment declaring that the plaintiffs have a recorded easement over the subject driveway and for injunctive relief, the defendants appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Grays, J.), dated January 28, 2005, which denied their motion for summary judgment dismissing the complaint and declaring that the subject easement was extinguished or never created and granted the plaintiffs' cross motion for summary judgment, inter alia, declaring that the plaintiffs have a recorded easement over the subject driveway, directing the defendants to remove the fence blocking access to the driveway, and striking the defendants' answer and counterclaims.

ORDERED that the order and judgment is affirmed, with costs.

 “An easement created by grant may be extinguished by adverse possession” (Spiegel v. Ferraro, 73 N.Y.2d 622, 625, 543 N.Y.S.2d 15, 541 N.E.2d 15;  see Rahabi v. Morrison, 81 A.D.2d 434, 438, 440 N.Y.S.2d 941;  Castle Assoc. v. Schwartz, 63 A.D.2d 481, 487, 407 N.Y.S.2d 717).   The party seeking to extinguish the easement must establish, by clear and convincing evidence, the five elements of adverse possession:  that the use of the easement has been (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of 10 years (see RPAPL 501;  Spiegel v. Ferraro, supra at 625, 543 N.Y.S.2d 15, 541 N.E.2d 15;  Brand v. Prince, 35 N.Y.2d 634, 636, 364 N.Y.S.2d 826, 324 N.E.2d 314;  MAG Assoc. v. SDR Realty, 247 A.D.2d 516, 517, 669 N.Y.S.2d 314).

 Generally, “an inference of hostile possession or claim of right will be drawn when the other elements of adverse possession are established” (MAG Assoc. v. SDR Realty, supra;  see Harbor Estates Ltd. Partnership v. May, 294 A.D.2d 399, 400, 742 N.Y.S.2d 347).   However, “when ․ permission can be implied from the beginning, adverse possession will not arise until there is a distinct assertion of a right hostile to the owner” (Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., 192 A.D.2d 501, 503, 596 N.Y.S.2d 435;  see Dickerson Pond Sewage Works Corp. v. Valeria Assoc., 231 A.D.2d 488, 489, 647 N.Y.S.2d 268;  Susquehanna Realty Corp. v. Barth, 108 A.D.2d 909, 485 N.Y.S.2d 795).

 While the defendants established four of the elements of adverse possession, they failed to prove hostility or possession under a claim of right.   In her affidavit submitted in support of the defendants' motion for summary judgment dismissing the complaint, the defendant Athena Sakalis (hereinafter Athena) stated that her father erected the fence “with the full knowledge and assistance of the plaintiffs.”   Thus, based on Athena's own admission, it may be implied that the fence was erected with the permission of the plaintiffs, thereby rebutting the inference of hostile possession (see Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., supra, at 503, 596 N.Y.S.2d 435;  see Dickerson Pond Sewage Works Corp. v. Valeria Assoc., supra at 489, 647 N.Y.S.2d 268;  Susquehanna Realty Corp. v. Barth, supra at 909, 485 N.Y.S.2d 795).   Therefore, the element of hostility did not exist until May of 2002 when the plaintiffs' daughter asked the defendants to remove the fence, and the defendants refused.   As this action was commenced about four months later, the defendants failed to prove adverse possession for the requisite ten-year period.

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment, finding that the defendants failed to make a prima facie showing of entitlement to judgment based on the theory that the easement had been extinguished by adverse possession.   Likewise, it properly granted the plaintiffs' cross motion for summary judgment, finding that, on the same ground, the defendants had failed to raise a material issue of fact requiring a trial (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).