251 CPW LLC v. 257 CENTRAL PARK WEST INC

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

251 CPW LLC, et al., Plaintiffs-Appellants, v. 257 CENTRAL PARK WEST, INC., et al., Defendants-Respondents.

Decided: June 17, 2008

ANDRIAS, J.P., FRIEDMAN, BUCKLEY, CATTERSON, ACOSTA, JJ. Gale Fieldman, New York, for appellants. Schechter & Brucker, P.C., New York (David H. Ostwald of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Leland DeGrasse, J.), entered on or about July 23, 2007, which granted defendants' motion for summary judgment and dismissed the complaint, and denied plaintiffs' cross motion for leave to amend, unanimously affirmed, with costs.

 The court properly concluded that plaintiffs have not acquired an easement in defendant 257 Inc.'s portion of the alleyway.   No easement by prescription exists since there is no showing that plaintiffs' use was hostile and adverse (see Amalgamated Dwellings, Inc. v. Hillman Hous. Corp., 33 A.D.3d 364, 822 N.Y.S.2d 499 [2006];  Bookchin v. Maraconda, 162 A.D.2d 393, 557 N.Y.S.2d 46 [1990];  see also Morales v. Riley, 28 A.D.3d 623, 813 N.Y.S.2d 518 [2006] ).   Nor may an easement be implied from plaintiffs' pre-existing use of the alleyway.   Plaintiffs have failed to make a showing of reasonable necessity, a necessary element for such an easement (see Turner v. Baisley, 197 A.D.2d 681, 602 N.Y.S.2d 907 [1993] );  use as a “mere convenience” is insufficient (id.).