        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

496
CA 12-00933
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND MARTOCHE, JJ.


JAMES S. DAVIS, ROBERT C. BOSSERT, JR.,
CHARLES D. BEAVER, DAVID A. RODKEY, ALBERT E.
WEISSER AND JOHN W. HUPP, PLAINTIFFS-APPELLANTS,

                    V                              MEMORANDUM AND ORDER

THOMAS T. WISKUP, SR., THOMAS T. WISKUP, JR.,
LAURA STANISZEWSKI, ROBERT C. WISKUP AND POTTER
LUMBER COMPANY, INC., DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


MACDONALD, ILLIG, JONES & BRITTON LLP, ERIE, PENNSYLVANIA (GREGORY P.
ZIMMERMAN OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

BACKHAUS & SIMON, P.C., OLEAN (ROBERT J. SIMON OF COUNSEL), FOR
DEFENDANT-RESPONDENT POTTER LUMBER COMPANY, INC.


     Appeal from a judgment of the Supreme Court, Cattaraugus County
(Gerald J. Whalen, J.), entered April 24, 2012. The judgment
dismissed the complaint and adjudged that defendant Potter Lumber
Company, Inc. is entitled to a prescriptive easement over a certain
portion of Bushey Road, Hinsdale.

      It is hereby ORDERED that the judgment so appealed from is
unanimously vacated on the law without costs and the matter is
remitted to Supreme Court, Cattaraugus County, for further proceedings
in accordance with the following Memorandum: In this action pursuant
to RPAPL article 15, plaintiffs appeal from a judgment that denied
their motion for summary judgment seeking a determination that a
certain roadway in the Town of Hinsdale (Town) has been abandoned as a
public road and granted the cross motion of defendant Potter Lumber
Company, Inc. (Potter Lumber) for summary judgment seeking a
determination that it has a prescriptive easement over the roadway.
Although the pleadings sharply place in issue the question whether the
subject roadway has been abandoned as a town highway, the Town has not
been made a party to this action. We therefore vacate the judgment
and remit the matter to Supreme Court for further proceedings with the
directive that the Town be joined as a defendant “in order to accord
complete relief between the parties” (DeMato v Mallin, 68 AD3d 711,
712).

     We note in any event that the court erred in determining that
Potter Lumber had acquired a prescriptive easement over a portion of
the road that the court determined was a “prescriptive highway.” A
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                                                         CA 12-00933

highway by prescription is a public road (see Highway Law § 189; see
also People v County of Westchester, 282 NY 224, 228; De Haan v Broad
Hollow Estates, 3 AD2d 848, 848), and a public highway created by
prescription is not subject to adverse possession (see Burbank v Fay,
65 NY 57, 69; Litwin v Town of Huntington, 208 AD2d 905, 906, lv
dismissed 86 NY2d 777).




Entered:   May 3, 2013                         Frances E. Cafarell
                                               Clerk of the Court
