                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 26, 2015                    518716
________________________________

KRISHAN G. GULATI, as Trustee
   of the February 15, 2002
   Charlotte E. Gulati,
   Beekmantown, QPRT,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

BRIAN O'LEARY et al.,
                    Appellants.
________________________________


Calendar Date:    January 13, 2015

Before:    Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                              __________


      Schneider & Palcsik, Plattsburgh (Mark Schneider of
counsel), for appellants.

      Stafford Law Office, Plattsburgh (Thomas M. Murnane of
counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (McGill, J.),
entered June 10, 2013 in Clinton County, which granted
plaintiff's motion for a directed verdict.

      The parties own adjoining properties on Lake Champlain in
the Town of Beekmantown, Clinton County. Plaintiff – in his
individual capacity – and his wife purchased the property now
held by the February 15, 2002 Charlotte G. Gulati, Beekmantown,
QPRT (hereinafter the Trust) in 1986, and the Trust rents the
summer cottage located on the property to seasonal tenants. In
order to reach the cottage, the tenants use a driveway on the
                              -2-                518716

adjoining property. Defendants purchased this adjoining property
in 2005 and sought to stop the Trust's tenants from using the
driveway, eventually erecting a fence to block access from their
property to the Trust's cottage. Relying on language in the 1986
deed to plaintiff in his individual capacity and his wife
granting a right-of-way over "the usual traveled road," which
mirrors the language of an easement granted in 1937 to the
original titleholders of one of the three parcels comprising the
Trust's property (hereinafter the lakefront parcel), plaintiff
commenced this action pursuant to RPAPL article 15 seeking a
declaration that the property owned by the Trust has either a
deeded right-of-way over defendants' property or, in the
alternative, a prescriptive easement. Defendants counterclaimed
to quiet title and for ejectment and intentional trespass.

      After joinder of issue and discovery, plaintiff moved for
summary judgment on its causes of action to declare the existence
of a right-of-way over defendants' property or for a prescriptive
easement. Defendants opposed the motion and cross-moved for
summary judgment on their counterclaims. Supreme Court noted
that the expert submissions from both parties recognized the
existence of two rights-of-way benefitting the Trust property.
Based on the competing expert opinions as to the location of "the
usual traveled road," however, the court found a triable issue of
fact as to whether the relevant deeded right-of-way was located
on defendants' property. The court partially granted plaintiff's
motion for summary judgment on his claim for a deeded right-of-
way by establishing the existence of a grant of such a right-of-
way from the lakefront parcel to the nearest public highway and
first appearing in the chain of title in 1937, finding a triable
issue as to the location of this right-of-way in relation to the
parties' respective properties and denying defendants' cross
motion. The matter then proceeded to a jury trial and, at the
conclusion of all the evidence, plaintiff moved for a directed
verdict on the prescriptive easement cause of action. Supreme
Court granted the motion, leaving the question of the location of
the deeded right-of-way unanswered. The court then entered a
judgment and defendants now appeal, arguing that the motion for a
directed verdict should have been denied and that their cross
                               -3-                518716

motion for summary judgment should have been granted.1

      We cannot agree with defendants' contention that their
cross motion for summary judgment dismissing plaintiff's claim
for a prescriptive easement should have been granted. A party
claiming a prescriptive easement must show, by clear and
convincing evidence, that the use of the easement was open,
notorious, hostile and continuous for a period of 10 years (see
Ward v Murariu Bros., Inc., 100 AD3d 1084, 1085 [2012]; Nixon v
Morris, 91 AD3d 1170, 1171 [2012]; Estate Ct., LLC v Schnall, 49
AD3d 1076, 1077 [2008]). Although the element of hostility is
presumed upon a showing of the other elements, where "the
relationship between the parties is one of neighborly cooperation
and accommodation," no such presumption arises and, rather,
permission will be inferred (Allen v Mastrianni, 2 AD3d 1023,
1024 [2003]; accord Taverni v Broderick, 111 AD3d 1197, 1199
[2013]). "Generally, the question of implied permission is one
for the factfinder to resolve" (Barra v Norfolk S. Ry. Co., 75
AD3d 821, 824 [2010] [citations omitted]).

      Here, the evidence submitted on the summary judgment
motions indicates that a neighborly relationship existed between
plaintiff, individually, the Trust's tenants and defendants'
predecessors in title. However, inasmuch as there is no evidence
of express permission granted to use defendants' property, and
the relevant parties are not "related by blood or part of a
select group of friends," summary judgment dismissing the claim
for a prescriptive easement on the ground that plaintiff was
unable to establish hostility was not warranted (id. at 824
[internal quotation marks and citation omitted]; see Lew Beach
Co. v Carlson, 77 AD3d 1127, 1129 [2010]; Barlow v Spaziani, 63
AD3d 1225, 1226-1227 [2009]).




     1
        Although plaintiff argues that defendants did not appeal
the order that determined the motions for summary judgment, their
appeal from the final judgment brings that order up for review
(see CPLR 5501 [a] [1]; Windsearch, Inc. v Delafrange, 90 AD3d
1223, 1223 n 1 [2011]).
                              -4-                  518716

      On the other hand, by the same reasoning, we must agree
with defendants that the motion for a directed verdict granting
plaintiff a prescriptive easement should have been denied.
Inasmuch as the evidence at trial also revealed that plaintiff,
individually, the Trust's tenants and defendants' predecessors in
title were neighborly in their dealings with respect to the
driveway, we cannot say that "there is no rational process by
which the fact trier could base a finding in favor of the
nonmoving party" (Gold v Di Cerbo, 41 AD3d 1051, 1052 [2007], lv
denied 9 NY3d 811 [2007], quoting Szczerbiak v Pilat, 90 NY2d
553, 556 [1997]; see CPLR 4401).

      Although defendants also contend that they were entitled to
summary judgment dismissing plaintiff's request for a declaration
of a deeded right-of-way, their own expert recognizes the
existence of such an easement, but opines that it is not located
on defendants' property. Based on the competing expert opinions
as to whether the right-of-way is located on defendants'
property, triable issues of fact exist as to its location (see
Kennedy v Nimons, 121 AD3d 1229, 1231 [2014]; Gholizadeh v
Keifer, 66 AD3d 1209, 1210-1211 [2009]). Defendants' remaining
contentions have been considered and determined to be unavailing.

     Peters, P.J., Egan Jr. and Clark, JJ., concur.


      ORDERED that the judgment is reversed, on the law, with
costs, motion denied and matter remitted to the Supreme Court for
a new trial.



                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
