Opinion
April 28, 1995
Appeal from the Supreme Court, Ontario County, Curran, J.
Present — Green, J.P., Pine, Callahan, Doerr and Boehm, JJ.
Judgment unanimously reversed on the law with costs and judgment granted in accordance with the following Memorandum: Supreme Court erred in determining that plaintiffs acquired a prescriptive easement over the east-west driveway on defendant's property. To establish a prescriptive easement, plaintiffs were required to show by clear and convincing evidence that their use of the driveway was "adverse, open and notorious, continuous and uninterrupted for the prescriptive period" (Di Leo v Pecksto Holding Corp., 304 N.Y. 505, 512; see, Lucas v Benjamin, 213 A.D.2d 1015; Miller v Rau, 193 A.D.2d 868, 868-869). Plaintiffs failed to meet that burden. It is undisputed that plaintiffs' use of the driveway was in common with the general public. Plaintiffs, therefore, were required to show "some distinctive and decisive act on [plaintiffs'] or [their] predecessors' part indicating an exercise of exclusive right sufficient to notify the owner of the user and of the claim of right" (Pro-Fac Coop. v Baltimore Ohio R.R. Co., 36 A.D.2d 441, 444; see, Pirman v Confer, 273 N.Y. 357, 363, rearg denied 274 N.Y. 570, mot to amend remittitur granted 275 N.Y. 624; Susquehanna Realty Corp. v Barth, 108 A.D.2d 909). Similarly, because the use of the driveway was originally permissive in nature, it was incumbent upon plaintiffs to show the "assertion of a hostile right which is made known to the property owner" (Hassinger v Kline, 91 A.D.2d 988, 989; see, Susquehanna Realty Corp. v Barth, supra). Plaintiffs, however, failed to present proof of any act on their part that would provide notice of a hostile claim to defendant or his predecessor (see, Hasgo Power Equip. Sales v Lewis, 213 A.D.2d 1016; Midollo v Fanelli, 186 A.D.2d 545; Merriam v 352 W. 42nd St. Corp., 14 A.D.2d 383, 386). We, therefore, grant judgment in favor of defendant declaring that plaintiffs have not acquired a prescriptive easement over the east-west driveway on defendant's property.