CASEY v. BAZAN

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

Kathleen CASEY, Respondent, v. Henry BAZAN, et al., Appellants.

Decided: September 28, 1998

Before BRACKEN, J.P., and THOMPSON, PIZZUTO and ALTMAN, JJ. Horne & Childs, White Plains (Marshall L. Goldstein, of counsel), for appellants. D'Avanzo & Morreale, P.C., Somers (Joseph A. D'Avanzo, of counsel), for respondent.

In an action for a permanent injunction in the form of a prescriptive easement, the defendants appeal from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), dated June 17, 1997, which, after a nonjury trial, granted the permanent injunction.

ORDERED that the judgment is affirmed, with costs.

 The burden of proving all the elements of a prescriptive easement is on the person who asserts the claim.   Once the claimant has shown, by clear and convincing evidence, that the subject property was used openly, notoriously, and continuously for the statutory period, the presumption arises that the use was adverse and the burden shifts to the owner of the property to rebut the presumption by showing that the use was permissive (see, Katona v. Low, 226 A.D.2d 433; , 641 N.Y.S.2d 62 2 N.Y. Jur. 2d, Adverse Possession § 7;  Nazarian v. Pascale, 225 A.D.2d 381, 383, 638 N.Y.S.2d 661).   Here, the plaintiff established that since 1941, her family had openly used a portion of the neighboring back yard as a place to turn their car around in order to enter the garage at the rear of their house.   The defendants failed to sustain their burden of showing that the use was permitted by their predecessors in title.

The defendants' remaining contention is without merit.

MEMORANDUM BY THE COURT.

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