Opinion
June 18, 1992
Appeal from the Supreme Court, Saratoga County (Viscardi, J.).
Plaintiffs Donna Deuel, Gladys Ecock, Alecsa Lefkovitz, Joan Lefkovitz and Percy E. Pariseau (hereinafter collectively referred to as plaintiffs) own parcels of real property along South Beach Road, also known as Ninth Street, in the Town of Malta, Saratoga County. All of the properties are in close proximity to Saratoga Lake. Whenever they wanted to gain access to or depart from the lake, plaintiffs would walk across a path on land owned by defendants. In December 1979, defendants erected a fence along the path which prevented plaintiffs from gaining access to the lake. In September 1980, plaintiffs commenced this action against defendants asserting that they had a prescriptive easement in the path. Issue was joined and, after a nonjury trial, Supreme Court found for plaintiffs and enjoined defendants from interfering with plaintiffs' right to use the path. This appeal by defendants ensued.
In order to establish a claim for a prescriptive easement appurtenant, plaintiffs must demonstrate by clear and convincing evidence that their use of the path on defendants' property was for the benefit of their real property and was adverse, open and notorious, continuous and uninterrupted for the prescriptive period (see, Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512; Reiss v. Maynard, 170 A.D.2d 992, 992-993, lv dismissed 78 N.Y.2d 908; Hamilton v. Kennedy, 168 A.D.2d 717, 718, lv denied 77 N.Y.2d 808). Such a showing gives rise to a presumption that the use of the path by plaintiffs was hostile and shifts the burden to defendants to show that the use of such path was by license (see, Di Leo v. Pecksto Holding Corp., supra; Hamilton v. Kennedy, supra, at 719; see generally, Jansen v. Sawling, 37 A.D.2d 635). It is not essential that plaintiffs demonstrate that their use of the path was exclusive (see, McLean v. Ryan, 157 A.D.2d 928, 930; Fila v. Angiolillo, 88 A.D.2d 693, lv denied 57 N.Y.2d 609) and plaintiffs' claim will not be defeated merely because their use was seasonal (see, Epstein v. Rose, 101 A.D.2d 646, 647, lv denied 64 N.Y.2d 611; Slater v. Ward, 92 A.D.2d 667, 668; Beutler v. Maynard, 80 A.D.2d 982, 983, affd 56 N.Y.2d 538).
In the instant action, a review of the record demonstrates that Ecock used the path on defendants' property to gain access to the lake every summer for 11 years to erect a dock around the Memorial Day holiday. Alecsa Lefkovitz and Joan Lefkovitz walked across the path for over 25 years to dock a boat, fish and swim in the summer and to go ice fishing and skating in the winter. Although relatives, friends and guests walked across the path as well, the record indicates that plaintiffs were the principal users of the path on defendants' property (see, Reed v Piedimonte, 138 A.D.2d 937, lv denied 72 N.Y.2d 803). Those plaintiffs have demonstrated by clear and convincing evidence that their use of the path on defendants' property prior to the erection of the fence in 1979 was open, notorious and continuous, giving rise to the presumption that the use was adverse and shifting the burden to defendants to show that the use of the path was by license (see, Di Leo v. Pecksto Holding Corp., supra; Hamilton v. Kennedy, supra, at 719). Defendants failed to present sufficient evidence to rebut the presumption. Accordingly, Supreme Court properly found that plaintiffs established their claim for a prescriptive easement appurtenant (see, Denniston's Crossing v. State of New York, 76 A.D.2d 988).
Deuel's interest, however, is different in kind from that of the other plaintiffs. While the record is clear that Deuel walked across the path on defendants' property to gain access to the lake for almost 40 years, it is equally clear that she did not own real property during that time period. Accordingly, Deuel is entitled to a prescriptive easement in gross and not appurtenant as held by Supreme Court (see, Matter of Thomson v. Wade, 117 A.D.2d 996, affd 69 N.Y.2d 570; Hoffman v. Capitol Cablevision Sys., 52 A.D.2d 313, 315, lv denied 40 N.Y.2d 806).
Weiss, P.J., Yesawich Jr., Casey and Harvey, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as awarded plaintiff Donna Deuel a prescriptive easement appurtenant; said plaintiff is awarded a prescriptive easement in gross; and, as so modified, affirmed.