Opinion
March 17, 1995
Appeal from the Supreme Court, Chautauqua County, Gerace, J.
Present — Green, J.P., Pine, Callahan, Doerr and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: The determination of Supreme Court that plaintiff did not acquire a prescriptive easement over a portion of the property of defendant Catherine Benjamin is supported by the record. "In order to establish a prescriptive easement over defendant['s] property, plaintiff had to show by clear and convincing evidence adverse, open and notorious, and continued and uninterrupted use of [defendant's property] for the prescriptive period" (Miller v. Rau, 193 A.D.2d 868; see, Hasgo Power Equip. Sales v. Lewis, 213 A.D.2d 1016 [decided herewith]; Reinwald v. Accardi, 201 A.D.2d 476; City of Tonawanda v. Ellicott Cr. Homeowners Assn., 86 A.D.2d 118, 120-121, appeal dismissed 58 N.Y.2d 824). Plaintiff failed to meet that burden. The court, however, rather than dismissing the complaint insofar as it sought a declaratory judgment, should have declared the rights of the parties (see, Shields v. City of Buffalo, 206 A.D.2d 921, lv denied 84 N.Y.2d 813). We modify the order on appeal, therefore, by reinstating the complaint insofar as it seeks a declaratory judgment and by granting judgment in favor of defendant Catherine Benjamin declaring that plaintiff has not acquired a prescriptive easement over approximately 3.8 feet along the northern boundary of the property of defendant Catherine Benjamin. In light of our determination, we do not address the remaining arguments advanced by the parties.