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

1221
CA 14-00635
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


DONALD MAU AND DIANNE MAU,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                               MEMORANDUM AND ORDER

EDWARD SCHUSLER AND BARBARA SCHUSLER,
DEFENDANTS-APPELLANTS-RESPONDENTS.


HISCOCK & BARCLAY, LLP, ELMIRA (BRYAN J. MAGGS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS-RESPONDENTS.

FRANK A. ALOI, ROCHESTER, AND ROBERT J. LUNN, FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from an order of the Supreme Court,
Steuben County (Marianne Furfure, A.J.), entered June 19, 2013. The
order denied the motion of defendants for summary judgment.

     It is hereby ORDERED that the cross appeal is dismissed and the
order is modified on the law by granting defendants’ motion in part
and dismissing the first, second and third causes of action in the
amended complaint and the fifth cause of action to the extent it seeks
injunctive relief with respect to the first, second and third causes
of action and as modified the order is affirmed without costs in
accordance with the following Memorandum: Plaintiffs and defendants
have adjoining properties on Keuka Lake that were formerly commonly
owned and now share a common driveway, which is located entirely on
plaintiffs’ property. Defendants have an access easement for the
driveway. Plaintiffs commenced this action pursuant to RPAPL article
15 seeking, inter alia, an order determining that they have an
easement with respect to an approximately 195-square-foot parking and
turnaround space (hereafter, turnaround) located on defendants’
property, adjacent to the driveway on plaintiffs’ property. In the
amended complaint, plaintiffs asserted five causes of action, the
first four of which allege, respectively, that plaintiffs have an
easement by implication, an express easement, an easement by
necessity, and an easement by prescription with respect to the
turnaround. The fifth cause of action seeks an order, inter alia,
enjoining defendants from interfering with those easements.
Defendants subsequently moved for summary judgment dismissing the
amended complaint, and Supreme Court denied the motion. We modify the
order by granting those parts of the motion with respect to the first,
second, and third causes of action, as well as the fifth cause of
action to the extent it seeks injunctive relief with respect to the
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                                                         CA 14-00635

first, second, and third causes of action.

      With respect to the first cause of action, for an implied
easement, “a grantee claiming an easement implied by existing use must
establish: (1) a unity and subsequent severance of title with respect
to the relevant parcels; (2) that during the period of unity of title,
the owner established a use in which one part of the land was
subordinated to another; (3) that such use established by the owner
was so continuous, obvious, and manifest that it indicated that it was
meant to be permanent; and (4) that such use affects the value of the
estate conveyed and that its continuation is necessary to the
reasonable beneficial enjoyment of the estate conveyed” (Monte v Di
Marco, 192 AD2d 1111, 1112, lv denied 82 NY2d 653). “Stated another
way, ‘[a]n implied easement will arise “upon severance of ownership
when, during the unity of title, an apparently permanent and obvious
servitude was imposed on one part of an estate in favor of another
part, which servitude at the time of severance is in use and is
reasonably necessary for the fair enjoyment of the other part of the
estate” ’ ” (Freeman v Walther, 110 AD3d 1312, 1315). “Implied
easements are not favored by the law and the burden of proof rests
with [plaintiffs] to prove such entitlement by clear and convincing
evidence” (Hedden v Bohling, 112 AD2d 23, 24, appeal dismissed 67 NY2d
758).

     Defendants met their initial burden by establishing that, when
the properties were commonly owned, the owner of the properties did
not establish a use of the turnaround that “was so continuous,
obvious, and manifest that it indicated that it was meant to be
permanent” (Monte, 192 AD2d at 1112; see generally Zuckerman v City of
New York, 49 NY2d 557, 562). Defendants also demonstrated that the
turnaround was used primarily to facilitate plaintiffs’ access to off-
street parking, and “mere convenience is not sufficient to establish
reasonable necessity” (Freeman, 110 AD3d at 1316; see Simone v
Heidelberg, 9 NY3d 177, 182). Plaintiffs failed to raise a triable
issue of fact in opposition to that part of the motion (see Abbott v
Herring, 97 AD2d 870, 870-871, affd 62 NY2d 1028; see generally
Zuckerman, 49 NY2d at 562). We therefore modify the order
accordingly.

     With respect to the second cause of action, for an express
easement, we note that Real Property Law § 240 (3) provides in
relevant part that “[e]very instrument creating [or] transferring . .
. an estate or interest in real property must be construed according
to the intent of the parties, so far as such intent can be gathered
from the whole instrument, and is consistent with the rules of law.”
“The ‘intent’ to which the statute refers is the objective intent of
the parties as manifested by the language of the deed; unless the deed
is ambiguous, evidence of unexpressed, subjective intentions of the
parties is irrelevant” (Margetin v Jewett, 78 AD3d 1486, 1488). We
conclude that defendants met their burden of establishing that the
access easement in the deed to defendants from the owner of what was
formerly the common properties did not grant to that owner express
permission to use the turnaround (see generally Perry v Edwards, 79
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                                                         CA 14-00635

AD3d 1629, 1630). Plaintiffs failed to raise a triable issue of fact
in opposition thereto (see generally Zuckerman, 49 NY2d at 562). We
therefore further modify the order accordingly.

     With respect to the third cause of action, seeking an order
determining that plaintiffs have an easement by necessity with respect
to the turnaround, we note that “[t]he party asserting an easement by
necessity bears the burden of establishing by clear and convincing
evidence . . . ‘that there was a unity and subsequent separation of
title, and [ ] that at the time of severance an easement over [the
servient estate’s] property was absolutely necessary’ . . .
Significantly, ‘the necessity must exist in fact and not as a mere
convenience’ . . . and must be indispensable to the reasonable use for
the adjacent property” (Simone, 9 NY3d at 182; see Shute v McLusky
[appeal No. 2], 96 AD3d 1360, 1361). As noted, defendants
demonstrated that the primary use of the turnaround was to ease
plaintiffs’ access to off-street parking; here, we conclude that
defendants met their initial burden by submitting evidence that
plaintiffs had on-street parking at their disposal in addition to the
ability to use the driveway and the parking spot on their property
even without access to the turnaround. Put differently, plaintiffs
are not entitled to an easement by necessity because access for off-
street parking is “nothing more than a mere convenience” (Simone, 9
NY3d at 182), and plaintiffs’ assertion that it is too expensive for
them to build a turnaround on their property is insufficient to raise
a triable issue of fact in opposition to that part of the motion (see
generally Zuckerman, 49 NY2d at 562). We therefore further modify the
order accordingly.

     With respect to the fourth cause of action, for an easement by
prescription, we conclude that there is a triable issue of fact
whether plaintiffs had a claim of right to the use of the turnaround.
To establish a prescriptive easement, plaintiffs must establish by
clear and convincing evidence that the use of the turnaround was
“ ‘adverse, open and notorious, continuous and uninterrupted for the
prescriptive period’ ” of 10 years (Beutler v Maynard, 80 AD2d 982,
982, affd 56 NY2d 538, quoting Di Leo v Pecksto Holding Corp., 304 NY
505, 512). The elements of a claim for an easement by prescription
are similar to those of a claim for adverse possession, except that
demonstration of exclusivity is not essential to a claim for easement
by prescription (see King’s Ct. Rest., Inc. v Hurondel I, Inc., 87
AD3d 1361, 1362). Thus, to establish an easement by prescription,
plaintiffs must establish by clear and convincing evidence possession
that was hostile and under a claim of right; actual; open and
notorious; and continuous for the required period (see Walling v
Przybylo, 7 NY3d 228, 232). It is undisputed that the 2008 amendments
to RPAPL 501 providing, inter alia, that “[a] claim of right means a
reasonable basis for the belief that the property belongs to the
adverse possessor” (RPAPL 501 [3]), do not apply here (see Franza v
Olin, 73 AD3d 44, 47). Thus, plaintiffs’ “actual knowledge of the
true owner is not fatal” to their claim for an easement by
prescription (Walling, 7 NY3d at 233).

     Inasmuch as their submissions are replete with evidence of
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                                                          CA 14-00635

cooperation and neighborly accommodation between the parties, we
conclude that defendants met their initial burden of demonstrating
that plaintiffs cannot establish their claim for an easement by
prescription (see generally Zuckerman, 49 NY2d at 562). We further
conclude, however, that plaintiffs’ submissions in opposition were
sufficient to raise a triable issue of fact (see generally id.).
Plaintiffs tendered, inter alia, an affidavit of plaintiff Dianne Mau
(Mau), who stated that at the time they purchased their property
plaintiffs were advised by their then-attorney that the owners of what
is now defendants’ property could not interfere with plaintiffs’ use
of the turnaround, and that the access easement for the driveway was
granted on the condition that the owners of what is now defendants’
property would not interfere with the use of the turnaround by the
owners of what is now plaintiffs’ property. Contrary to the
conclusion of the dissent, those averments are not contradicted by
Mau’s prior deposition testimony, and we thus conclude that plaintiffs
raised a triable issue of fact whether their use of the turnaround was
hostile and under a claim of right (see Walling, 7 NY3d at 232), i.e.,
whether that use was adverse to defendants (see Dermody v Tilton, 85
AD3d 1682, 1682).

     In view of our determination with respect to the fourth cause of
action, we further conclude that the court should have granted that
part of defendants’ motion for summary judgment dismissing the fifth
cause of action to the extent that it seeks injunctive relief with
respect to the first three causes of action, i.e., an order enjoining
defendants from interfering with plaintiffs’ use of the turnaround and
directing defendants to remove any barriers erected for the purpose of
denying plaintiffs access to the turnaround. We therefore further
modify the order accordingly. Finally, plaintiffs are not aggrieved
by the order denying defendants’ motion, and thus their cross appeal
must be dismissed (see Rifenburg Const., Inc. v State of New York, 90
AD3d 1498, 1500; see generally CPLR 5511). To the extent that
plaintiffs’ request for reverse summary judgment pursuant to CPLR 3212
(b) is properly before us (cf. Hecht v City of New York, 60 NY2d 57,
63; Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,
544-545; Ciesinski v Town of Aurora, 202 AD2d 984, 985), we conclude
that it lacks merit for the reasons set forth above.

     All concur except SMITH, J.P., and LINDLEY, J., who dissent in part
and vote to reverse in accordance with the following Memorandum: We
respectfully dissent in part. Although we agree with the majority
that Supreme Court erred in denying defendants’ motion insofar as it
sought summary judgment dismissing the causes of action for an express
easement, an easement by necessity and an easement by implication, we,
unlike the majority, conclude that the court also erred in denying the
motion with respect to the cause of action seeking a prescriptive
easement. We would therefore reverse the order and grant defendants’
motion in its entirety.

     “A party asserting the existence of a prescriptive easement must
prove, by clear and convincing evidence, that the use of the subject
property was open, notorious, continuous, hostile and under a claim of
right for the requisite 10-year period” (Cole v Rothe, 18 AD3d 1058,
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                                                         CA 14-00635

1059; see Zutt v State of New York, 50 AD3d 1133, 1133). We agree
with the majority that defendants met their initial burden of
establishing as a matter of law that plaintiffs’ use of the turnaround
area on defendants’ property was permissive, thus shifting the burden
to plaintiffs to raise an issue of fact. We cannot agree with the
majority, however, that plaintiffs met that burden.

     In opposition to the motion, plaintiffs submitted, inter alia, an
affidavit from plaintiff Dianne Mau (Mau), who asserted that, when she
and her husband purchased their property in 1995, they were advised by
their attorney that the driveway easement granted them the right to
use the turnaround area. That assertion, however, is contradicted by
Mau’s deposition testimony. When asked whether anyone told her prior
to purchase that she could use the turnaround area, Mau responded,
“No, nothing was said one way or the other.” When asked whether she
believed prior to 2008 that she had a right to turn around on
defendants’ property, Mau answered, “We had no reason to think it was
an issue . . . [b]ecause nothing was ever said to us about it one way
or another about whether we could or could not.” In our view, Mau’s
affidavit “presented apparent feigned issues of fact designed to avoid
the consequences of [her] earlier deposition testimony and, thus, was
insufficient to defeat [defendants’] motion” for summary judgment
dismissing that cause of action (Carriero v Nazario, 116 AD3d 818,
819; see Taillie v Rochester Gas & Elec. Corp., 68 AD3d 1808, 1809;
Richter v Collier, 5 AD3d 1003, 1004).




Entered:   January 2, 2015                      Frances E. Cafarell
                                                Clerk of the Court
