Summary
requiring that the claimant prove that "the subject property was used openly, notoriously, and continuously for the statutory period."
Summary of this case from BOARD OF MGRS., SOHO INTL. ARTS CONDO. v. CITY OF NEW YORKOpinion
September 28, 1998
Appeal from the Supreme Court, Westchester County (Lefkowitz, J.).
Ordered that the judgment is affirmed, with costs.
The burden of proving all the elements of a prescriptive easement is on the person who asserts the claim. Once the claimant has shown by clear and convincing evidence, that the subject property was used openly, notoriously, and continuously for the statutory period, the presumption arises that the use was adverse and the burden shifts to the owner of the property to rebut the presumption by showing that the use was permissive ( see, Katona v. Low, 226 A.D.2d 433; 2 N.Y. Jur 2d, Adverse Possession, § 7; Nazarian v. Pascale, 225 A.D.2d 381, 383). Here, the plaintiff established that since 1941, her family had openly used a portion of the neighboring back yard as a place to turn their car around in order to enter the garage at the rear of their house. The defendants failed to sustain their burden of showing that the use was permitted by their predecessors in title.
The defendants' remaining contention is without merit.
Bracken J.P., Thompson, Pizzuto and Altman, JJ., concur.