Mispalleleh Beis Medresh Torah Vadaas, et al., appellants, v. Yeshivath Kehilath Yakov, Inc., et al., respondents. (2011)

Argued—September 9, 2011

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiffs are entitled to ongoing access to a portion of certain premises owned by the defendant Yeshivath Kehilath Yakov, Inc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Vaughan, J.), dated February 24, 2010, which denied their motion for a preliminary injunction and granted the defendants' cross motion for summary judgment, in effect, declaring that the plaintiffs are not entitled to ongoing access to the relevant portion of the subject premises.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the plaintiffs are not entitled to ongoing access to the relevant portion of the subject premises.

The Supreme Court properly granted the defendants' cross motion for summary judgment, in effect, declaring that the plaintiffs are not entitled to ongoing access to a portion of certain premises owned by the defendant Yeshivath Kehilath Yakov, Inc. (hereinafter Yeshivath).   The defendants established their entitlement to judgment as a matter of law in connection with the first cause of action alleging a contractual right to ongoing access to the relevant portion of the subject premises by submitting the relevant deed and contract documents, which do not contain any such provision.   In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).

The defendants established their entitlement to judgment as a matter of law in connection with the second cause of action alleging a prescriptive easement by demonstrating that the plaintiffs' use of the relevant portion of the subject premises was permissive, and not hostile (see Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512;  Duckworth v. Ning Fun Chiu, 33 AD3d 583;  Beretz v. Diehl, 302 A.D.2d 808).   In opposition, the plaintiffs failed to raise a triable issue of fact.   Hostility “does not require a showing of enmity or specific acts of hostility ․ All that is required is a showing that the [use] constitutes an actual invasion of or infringement upon the owner's rights” (Hall v. Sinclaire, 35 AD3d 660, 663 [internal quotation marks omitted];  see Gore v. Cambareri, 303 A.D.2d 551, 553;  Katona v. Low, 226 A.D.2d 433, 434).   Proof of permissive use will negate the element of hostility and defeat creation of a prescriptive easement (see Beretz v. Diehl, 302 A.D.2d 808).   The plaintiffs' own submissions established that, after they were excluded from the subject premises in the 1990s, community leaders convinced Yeshivath to permit the plaintiffs continued use of the subject premises.   Thus, the plaintiffs' submissions established that their use was with the owner's express, albeit reluctant, permission.

In light of our determination, the plaintiffs' contentions regarding their motion for preliminary injunctive relief have been rendered academic.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the plaintiffs are not entitled to ongoing access to the relevant portion of the subject premises (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

MASTRO, J.P., BALKIN, CHAMBERS and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court