Opinion
November 13, 1989
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiffs sought to enjoin certain defendants from blocking a driveway between their restaurant property and a shopping center parking lot on the ground that the use of the parking lot by their customers and employees since 1968 created a prescriptive easement. "An easement by prescription requires proof of the adverse, open, notorious and continuous use of another's land for the prescriptive period" (Borruso v Morreale, 129 A.D.2d 604).
The plaintiffs rely on the presumption that, where, as here, the use is open, notorious and continuous for the prescriptive period, it will be considered adverse, thereby shifting the burden to the defendants to show that the use was permissive (see, Cannon v Sikora, 142 A.D.2d 662; Borruso v Morreale, supra). However, the court properly found that the use of the parking lot by the general public made the presumption inapplicable and that the plaintiffs would be required to offer proof that their use was adverse (see, Susquehanna Realty Corp. v Barth, 108 A.D.2d 909). We agree with the court's finding that, while the plaintiffs may have a valid claim for a prescriptive easement, they had failed, on this record, to establish that they are likely to succeed on the merits. Consequently, the plaintiffs' motion for a preliminary injunction was properly denied.
The contention of the defendants Dalto and Superior Steakhouse Systems of Garden City, Inc., that the court should have treated their cross motions to dismiss the complaint pursuant to CPLR 3211 (a) (5), (7) and (10) as motions for summary judgment and should have granted judgment in their favor is without merit. Bracken, J.P., Kunzeman, Kooper and Balletta, JJ., concur.