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

Timothy BUSH, Plaintiff-Respondent, v. Andrew OZOGAR, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, KEHOE, MARTOCHE, AND HAYES, JJ. Raymond W. Bulson, Portville, for Defendant-Appellant. Mountain and Spears, Allegany (Alan L. Spears of Counsel), for Plaintiff-Respondent.

In this action commenced by plaintiff pursuant to RPAPL article 15 against an adjoining residential landowner, Supreme Court properly declared that plaintiff “has a prescriptive easement for parking and for access between the [parties' respective] houses,” and further properly directed defendant to remove a fence that interfered with that easement.   Plaintiff met his burden of establishing by clear and convincing evidence that his use of defendant's land was adverse, open and notorious, continuous and uninterrupted for the prescriptive period (see RPAPL 311;  Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512, 109 N.E.2d 600;  D.D.R. Realty Corp. v. Library Lane Assoc., 16 A.D.3d 541, 790 N.Y.S.2d 886;  Allen v. Farrell, 266 A.D.2d 857, 858, 698 N.Y.S.2d 186, appeal dismissed 95 N.Y.2d 777, 710 N.Y.S.2d 837, 732 N.E.2d 944).   The court further properly rejected defendant's contention that an easement by prescription cannot be recognized because an express grant of easement would be in violation of the law (see generally City of New York v. Wilson & Co., 278 N.Y. 86, 97, 15 N.E.2d 408, rearg. denied 278 N.Y. 702, 16 N.E.2d 850;  Burbank v. Fay, 65 N.Y. 57, 66).   Contrary to his contention, defendant failed to establish that plaintiff's use of the driveway violates a municipal ordinance.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.