                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521986
________________________________

KATHRYN L. M. RUNDBERG et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

KATHLEEN M. RUNDBERG,
                    Respondent.
________________________________


Calendar Date:   April 29, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Lynch and Aarons, JJ.

                             __________


      The Biscone Law Firm, Ravena (Michael J. Hutter of Powers &
Santola, LLP, Albany, of counsel), for appellants.

      Hilscher & Hilscher, Catskill (J. Theodore Hilscher of
counsel), for respondent.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the Supreme Court (Elliott III,
J.), entered January 12, 2015 in Greene County, upon a decision
of the court in favor of defendant.

      The parties own adjoining parcels of real property, title
to which was once unified. Upon moving back to his parcel in
August 1995, plaintiff Edward E. Rundberg became aware that his
brother, defendant's now-deceased husband (hereinafter the
husband), had installed a sewer line on Rundberg's property. In
2012, Rundberg and his spouse commenced this action claiming,
among other things, that defendant was continually trespassing on
their property by maintaining an active sewer line. Defendant
counterclaimed to establish an easement by prescription for the
sewer line. Following a nonjury trial, Supreme Court found in
                              -2-                521986

favor of defendant's counterclaim as to a prescriptive easement
and, as a result, dismissed plaintiffs' trespass claim.
Plaintiffs appeal,1 and we affirm.

      We reject plaintiffs' contention that defendant provided
legally insufficient proof to prove hostile use for the requisite
period in establishing a prescriptive easement claim. "To
succeed on a prescriptive easement claim, a [party] must show
that the use of the servient property was open, notorious,
continuous and hostile for the prescriptive period" (Barra v
Norfolk S. Ry. Co., 75 AD3d 821, 823 [2010] [citations omitted];
see Barlow v Spaziani, 63 AD3d 1225, 1226 [2009]). Although in
certain instances hostility is presumed upon proof of other
elements, that is not the case, where, as here, the user and the
landowner are related by blood (see Mobile Motivations, Inc. v
Lenches, 26 AD3d 568, 569 n [2006]; Wechsler v New York State
Dept. of Envtl. Conservation, 193 AD2d 856, 860 [1993], lv denied
82 NY2d 656 [1993]).

      Regardless of whether the husband had taken actions up
until the spring of 1996 that were inconsistent with the
necessary element of hostility, the record established that
between that time and the end of 1997, he refused three requests
by Rundberg to remove the sewer line. Those refusals were
sufficient to unequivacally notify plaintiffs of a hostile claim
(see Koudellou v Sakalis, 29 AD3d 640, 641-642 [2006]; see
generally Larsen v Hanson, 58 AD3d 1003, 1005 [2009]). As to the
period thereafter, the record contains numerous examples of
requests by plaintiffs and their attorney for the removal of the
sewer line being refused by defendant and the husband, and there
is no evidence that, during the subsequent 10-year period,
defendant or the husband acknowledged that they did not have a


    1
        Although the affidavit of service reflects that
plaintiffs timely served the notice of appeal, there is no
evidence that they timely filed the notice of appeal (see CPLR
2103 [b] [2]; 5513 [a]). In the absence of any prejudice to
defendant, we excuse any late filing in this regard (see CPLR
5520 [a]; Albany Eng'g Corp. v Hudson River/Black Riv. Regulating
Dist., 110 AD3d 1220, 1222 n [2013]).
                                 -3-                  521986

claim of right as to the sewer line's placement (see generally
Walling v Przybylo, 24 AD3d 1, 4-5, affd 7 NY3d 228 [2006]).
Accordingly, based on this continuous hostile use, defendant
established a vested right in a prescriptive easement no later
than the end of 2006,2 six years prior to plaintiffs'
commencement of the trespass claim. Plaintiffs' remaining
contentions are without merit.

         Egan Jr., Rose, Lynch and Aarons, JJ., concur.



         ORDERED that the judgment is affirmed, with costs.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     2
        Defendant's claim is "measured in accordance with the law
of prescription as it existed prior to the enactment of the 2008
amendments" to the RPAPL because defendant's right had vested
prior to July 7, 2008, the effective date for said amendments
(Barra v Norfolk S. Ry. Co., 75 AD3d at 825; see L 2008, ch 269;
see also Bergmann v Spallane, 129 AD3d 1193, 1194 n 2 [2015]).
