                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 22, 2015                   518013
________________________________

SUSAN E. MILLINGTON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

KENNY & DITTRICH AMHERST, LLC,
                    Respondent.
________________________________


Calendar Date:   November 12, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.

                             __________


     Susan E. Millington, Diamond Point, appellant pro se.

      Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Mark
E. Cerasano of counsel), for respondent.

                             __________


Lynch, J.

      Appeal from an order of the Supreme Court (Muller, J.),
entered August 29, 2013 in Warren County, which, among other
things, granted defendant's motion for summary judgment
dismissing the complaint.

      The parties own adjacent properties, known as 375 and 377
Canada Street, in the Village of Lake George, Warren County.
Those properties combine to form lot 111, which was purchased by
plaintiff's father, William W. Millington, in 1955. Millington
sold all but the northeast corner of the lot in 1956, retaining a
four-foot-wide easement "south and west of the said reserved
premises for ingress and egress thereto, snow removal,
maintenance, [and] repairs." Millington practiced law in a
building at 377 Canada Street. Over the years, a variety of
businesses have operated in a commercial building at 375 Canada
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Street. The area behind 375 and 377 Canada Street is used for
parking, and may be accessed from Canada Street by means of a
narrow alley running between the buildings, or from a dirt road
running behind the buildings.

      Plaintiff, who is also an attorney, acquired 377 Canada
Street from Millington in 2010. Defendant acquired 371, 373 and
375 Canada Street in 2012, and it intends to construct a hotel on
that property. A dispute arose as to whether plaintiff was
entitled to access and park in the area behind 377 Canada Street,
prompting her to commence the present RPAPL article 15 action.
Plaintiff specifically argued that she has acquired that part of
the parking area behind 377 Canada Street by adverse possession
and, moreover, that she enjoys a prescriptive easement over that
area and the routes to access it. Following joinder of issue,
defendant moved for summary judgment. Plaintiff opposed the
motion and cross-moved for summary judgment. Supreme Court
granted defendant's motion, and plaintiff now appeals.

      We affirm. Plaintiff initially argues that further
discovery is required into the motives of the former owner of 375
Canada Street and her son, as well as Millington's former
secretary – all of whom submitted affidavits in support of
defendant's motion – because she contends that each
mischaracterized the use of the area behind 377 Canada Street by
plaintiff and Millington. It suffices to say that those
individuals are nonparties, and plaintiff does not elucidate how
"further discovery would yield material evidence and also
demonstrate how further discovery might reveal material facts in
[defendant]'s exclusive knowledge" (Rochester Linoleum & Carpet
Ctr., Inc. v Cassin, 61 AD3d 1201, 1202 [2009] [internal
quotation marks and citation omitted]; see CPLR 3212 [f]; 2 N.
St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1396 [2009], lv
denied 14 NY3d 706 [2010]).

      Turning to the merits, "[t]o establish a claim of adverse
possession, the occupation of the property must be (1) hostile
and under a claim of right (i.e., a reasonable basis for the
belief that the subject property belongs to a particular party),
(2) actual, (3) open and notorious, (4) exclusive, and (5)
continuous for the statutory period (at least 10 years)" (Estate
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of Becker v Murtagh, 19 NY3d 75, 81 [2012]; see RPAPL 501;
Walling v Przybylo, 7 NY3d 228, 232 [2006]). "So long as the use
is open, notorious and continuous for the 10-year period,
hostility will [generally] be presumed" (2 N. St. Corp. v Getty
Saugerties Corp., 68 AD3d at 1393 [citations omitted]). The
presumption of hostility may not apply, however, "where there is
a close and cooperative relationship between the record owner and
the person claiming title through adverse possession" (Estate of
Becker v Murtagh, 19 NY3d at 82). To put it differently,
permissive use "may be inferred from a history of 'neighborly
cooperation and accommodation'" (McKeag v Finley, 93 AD3d 925,
927 [2012], quoting Allen v Mastrianni, 2 AD3d 1023, 1024
[2003]).

      Defendant argues, among other things, that plaintiff cannot
satisfy the element of hostility. Plaintiff asserts that the
hostile use of the area behind 377 Canada Street began in 1963,
when Millington began parking there after a motel operating at
375 Canada Street burned down. She is therefore attempting to
establish Millington's hostile use of property that he had
recently deeded away, a claim requiring "strong[] proof" that is
wholly lacking here (Sherman v Kane, 86 NY 57, 69 [1881]; see
Mannix v Riordan, 75 App Div 135, 137 [1902]). Plaintiff does
not dispute that both she and Millington were on good terms with
the prior owners of 375 Canada Street and that Millington had "a
very friendly, cordial relationship [with nearby businesses] when
it came to . . . accommodating the parking needs for all of the
businesses on the block" (see Estate of Becker v Murtagh, 19 NY3d
at 82; McKeag v Finley, 93 AD3d at 927; Allen v Mastrianni, 2
AD3d at 1024). Indeed, it is particularly worthy of note that
plaintiff does not provide an affidavit from Millington, who
could presumably rebut this evidence of cooperation and explain
how his use of the parking area and access thereto was hostile.
Given this unanswered evidence of neighborly accommodation,
Supreme Court properly granted summary judgment to defendant and
dismissed the adverse possession claim (see Penn Hgts. Beach
Club, Inc. v Myers, 42 AD3d 602, 606-607 [2007], lv dismissed 10
NY3d 746 [2008]; Gorman v Hess, 301 AD2d 683, 685 [2003]; Allen v
Mastrianni, 2 AD3d at 1024).

     Plaintiff's additional claims that she enjoys a
                              -4-                  518013

prescriptive easement over the parking area and access routes
were correctly dismissed for the same reason, as hostility is
required to establish a prescriptive easement (see Taverni v
Broderick, 111 AD3d 1197, 1199 [2013]; Ward v Murariu Bros.,
Inc., 100 AD3d 1084, 1085-1086 [2012]; Aubuchon Realty Co. v
Cohen, 294 AD2d 738, 739 [2002]). In light of the foregoing, we
need not consider whether plaintiff has established the other
elements of her claims.

     Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
