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

986
CA 11-00391
PRESENT: SMITH, J.P., CENTRA, CARNI, GREEN, AND MARTOCHE, JJ.


KING’S COURT RESTAURANT, INC.,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HURONDEL I, INC., DEFENDANT-APPELLANT.


THE KNOER GROUP, PLLC, BUFFALO (ROBERT E. KNOER OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BRIAN J. RUFFINO, BUFFALO, FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered April 27, 2010 in a declaratory judgment action.
The order denied the motion of defendant for summary judgment
dismissing the complaint and for a declaratory judgment to quiet
title.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
the complaint is dismissed and judgment is granted in favor of
defendant as follows:

          It is ORDERED, ADJUDGED and DECREED that plaintiff has
     no title by adverse possession and/or easement by
     prescription over the adjacent portion of defendant’s
     property in question.

     Memorandum: Plaintiff commenced this action seeking a
declaration that it has obtained title by adverse possession and/or
easement by prescription over a portion of defendant’s property that
is adjacent to plaintiff’s property. Supreme Court erred in denying
defendant’s motion for summary judgment dismissing the complaint and
for a declaratory judgment on its counterclaim to quiet title. We
therefore reverse.

     In cases involving title by adverse possession and/or easement by
prescription, an established record owner of the disputed property is
“entitled to summary judgment unless the [opposing party] can
demonstrate [its] rights by competent evidence or at least raise a
factual issue regarding [its] claim to title through adverse
possession or prescriptive easement” (City of Tonawanda v Ellicott Cr.
Homeowners Assn., 86 AD2d 118, 120, appeal dismissed 58 NY2d 824).
“ ‘To acquire title to real property by adverse possession . . . the
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                                                         CA 11-00391

possessor . . . [must] establish that the character of the possession
is hostile and under a claim of right, actual, open and notorious,
exclusive and continuous . . . for the statutory period of 10 years’ ”
(Dekdebrun v Kane, 82 AD3d 1644, 1646). “The elements of an easement
by prescription are similar although demonstration of exclusivity is
not essential” (Ellicott Cr. Homeowners Assn., 86 AD2d at 120; see Di
Leo v Pecksto Holding Corp., 304 NY 505, 511-512).

     Here, defendant met its initial burden on its motion by
submitting uncontroverted documentary evidence that it is the record
owner of the property to which plaintiff claims to have obtained title
by adverse possession and/or prescriptive easement. The burden thus
shifted to plaintiff to “demonstrate [its] rights by competent
evidence or at least raise a factual issue regarding [its] claim to
title through adverse possession or prescriptive easement” (Ellicott
Cr. Homeowners Assn., 86 AD2d at 120), and plaintiff failed to meet
that burden. Defendant established that neither plaintiff nor its
predecessors in interest could have possessed or used the area in
question in a continuous and uninterrupted manner and, with respect to
adverse possession, in an exclusive manner, over the course of any 10-
year period. Defendant is correct that there is no evidence that
plaintiff’s predecessors in interest used the alleged easement before
plaintiff obtained the property in 1979. Defendant further
established that part of a gas station covered a portion of the
alleged easement until at least 1986 and that, from at least 1995
onward, vehicles with no affiliation to plaintiff have been parked on
the alleged easement. Inasmuch as defendant’s evidence illustrated
the absence of both an uninterrupted 10-year period of possession or
use for 10 years, exclusive or otherwise, defendant established its
entitlement to a declaration in its favor on both the adverse
possession and prescriptive easement claims as a matter of law.

     We note that, in opposition to the motion, plaintiff submitted
affidavits from two of its corporate officers and two neighboring
business owners merely stating in a conclusory manner that plaintiff
exercised uninterrupted, open, continuous, hostile, and adverse use
and possession of the disputed area for over 10 years. Because those
affidavits simply recited the legal elements of an easement but did
not place them in the context of the facts of this case, they failed
to raise any issues of fact for purposes of defeating defendant’s
motion (see Villager Constr. v J. Kozel & Son, 222 AD2d 1018; Ellicott
Cr. Homeowners Assn., 86 AD2d at 122-123). Additionally, the
affidavit submitted by one of the neighboring business owners was
insufficient to raise an issue of fact to defeat the motion because it
was based upon information and belief rather than personal knowledge
(see Anderson v Livonia, Avon & Lakeville R.R. Corp., 300 AD2d 1134,
1135; Wood v Nourse, 124 AD2d 1020, 1021).

     Because defendant established its entitlement to judgment as a
matter of law on plaintiff’s adverse possession and prescriptive
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                                                         CA 11-00391

easement claims, defendant is entitled to a declaration in its favor.




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
