Opinion
October 5, 1992
Appeal from the Supreme Court, Westchester County (Burchell, J.H.O.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an amended judgment providing that the plaintiff does not have an easement over the defendants' property.
It is well settled that a party claiming an easement by prescription must prove an "adverse, open and notorious, continuous and uninterrupted" use of another's land for the prescriptive period, which in this case was conceded to be 15 years (see, Di Leo v Pecksto Holding Corp., 304 N.Y. 505, 512). The use "need not be on a daily basis, but it must be such that an owner of the land would or should recognize a hostile claim is asserted" (Jansen v Sawling, 37 A.D.2d 635; see also, Merriam v 352 W. 42nd St. Corp., 14 A.D.2d 383; Moore v Day, 199 App. Div. 76, affd 235 N.Y. 554). Furthermore, "`[u]nder ordinary circumstances, an open, notorious, uninterrupted and undisputed use of a right of way is presumed to be adverse under claim of right and casts the burden upon the owner of the servient tenement to show that the user was by license'" (Di Leo v Pecksto Holding Corp., supra, at 512, citing Pirman v Confer, 273 N.Y. 357, 363).
Contrary to the plaintiff's contentions, we are satisfied that, under the circumstances of this case, the use of the defendants' land did not manifest a sufficient degree of openness and notoriety or adverseness to give rise to a prescriptive easement.
We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendants rather than dismissal of the complaint (see, Lanza v Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Rosenblatt, J.P., Eiber, O'Brien and Ritter, JJ., concur.