Meyers v. Berl

213 A.D.3d 1233

184 N.Y.S.3d 239

William A. MEYERS and Eileen Meyers, Plaintiffs-Respondents,

v.Brian T. BERL and Faith Berl, Defendants-Appellants. (Appeal No. 2.)

846

CA 22-00569

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: February 3, 2023

UNDERBERG & KESSLER LLP, BUFFALO (THOMAS F. KNAB OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

KENDALL, WALTON & BURROWS, WATERTOWN (KATHRYN J. HARRIENGER OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.

Memorandum: Defendants own two parcels of land in Cape Vincent, Lot 10 and Lot 11, which border the St. Lawrence River. Plaintiffs own a single inland parcel across the street from Lot 10. In the 1960s, the parents of plaintiff William A. Meyers (Meyers parents) acquired the inland parcel, and the father of defendant Faith Berl acquired Lot 11. In 1993, Faith Berl became the owner of Lot 11 and, in 2010, defendants became the owners of Lot 10, an unimproved parcel of land. In 2012, plaintiffs became the owners of the inland parcel.

Pursuant to a 1964 Letter Agreement (Land Agreement) signed by Lionel Radley, who owned all the relevant properties at the time, and the father of plaintiff William A. Meyers, the Meyers parents were to obtain a "right of way to the River." The Land Agreement did not specify the location of that right-of-way. In 1969, Radley executed a deed conveying the inland parcel to the Meyers parents, but the deed did not mention any right-of-way regarding access to the river.

From 1964 through 2017, plaintiffs’ family members repeatedly used Lot 10 to access the river and to engage in recreational activities. They installed, on an annual basis, a seasonal dock and boat hoist at Lot 10's waterfront, at times with the help of defendants’ family members. In 2017, however, defendants sent plaintiffs a letter "revoking [the] permission" to use Lot 10 and proposing terms for a new agreement to allow plaintiffs to use Lot 10. Plaintiffs rejected the proposal and thereafter commenced this action seeking, inter alia, a determination that they have a prescriptive easement with respect to Lot 10.

Following a nonjury trial, Supreme Court issued an order and judgment that, inter alia, declared that plaintiffs have an easement over and across Lot 10. We now affirm.

As a preliminary matter, it is well settled that where, as here, the appeal is from a nonjury trial, "the Appellate Division has ‘authority ... as broad as that of the trial court ... and ... may render the judgment it finds warranted by the facts’ " ( Sweetman v. Suhr , 159 A.D.3d 1614, 1615, 72 N.Y.S.3d 756 [4th Dept. 2018], lv denied 31 N.Y.3d 913, 2018 WL 3152819 [2018], quoting Northern Westchester Professional Park Assoc. v. Town of Bedford , 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [1983] ). "Nonetheless, ‘the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence’ " ( Unger v. Ganci , 200 A.D.3d 1604, 1605, 161 N.Y.S.3d 546 [4th Dept. 2021], quoting Thoreson v. Penthouse Intl. , 80 N.Y.2d 490, 495, 591 N.Y.S.2d 978, 606 N.E.2d 1369 [1992], rearg denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298 [1993] ).

We conclude that a fair interpretation of the evidence supports the court's determination that plaintiffs had a prescriptive easement over Lot 10 inasmuch as the use of Lot 10 by plaintiffs’ family members has, since 1969, been hostile to the owners’ rights.

Unlike title by adverse possession, the determination of an easement by prescription focuses on a party's use of property rather than possession thereof (see Di Leo v. Pecksto Holding Corp. , 304 N.Y. 505, 510-512, 109 N.E.2d 600 [1952] ). To establish an easement by prescription, plaintiffs were required to "establish by clear and convincing evidence [use] that was hostile and under a claim of right ; actual; open and notorious; and continuous for the required period" of 10 years ( Mau v. Schusler , 124 A.D.3d 1292, 1296, 1 N.Y.S.3d 609 [4th Dept. 2015] [emphasis added]; see Beutler v. Maynard , 80 A.D.2d 982, 982, 437 N.Y.S.2d 463 [4th Dept. 1981], affd 56 N.Y.2d 538, 449 N.Y.S.2d 966, 434 N.E.2d 1344 [1982] ; Di Leo , 304 N.Y. at 512, 109 N.E.2d 600 ). The "hostile and under [a] claim of right" element does not encompass "two distinctly different requirements" ( Walling v. Przybylo , 24 A.D.3d 1, 6, 804 N.Y.S.2d 435 [3d Dept. 2005], affd 7 N.Y.3d 228, 818 N.Y.S.2d 816, 851 N.E.2d 1167 [2006] ). Rather, "the two parts of th[at] element have been viewed as virtually synonymous. Both parts require that the possession be truly adverse to the rights of the party holding record title" ( id. , citing Brand v. Prince , 35 N.Y.2d 634, 636, 364 N.Y.S.2d 826, 324 N.E.2d 314 [1974] ).

Here, defendants do not contest that plaintiffs established by clear and convincing evidence that their use was actual; open and notorious; and continuous for the required period, inasmuch as plaintiffs are able to "tack[ ] on" the established use by the Meyers parents ( Pierce v. Frost , 295 A.D.2d 894, 895, 743 N.Y.S.2d 642 [4th Dept. 2002] ). The sole disputed issue is whether the use of Lot 10 by the Meyers parents was hostile and under a claim of right, i.e., adverse. We agree with the court that plaintiffs established by clear and convincing evidence that it was hostile and under a claim of right.

"Possession [or use] is hostile when it constitutes an actual invasion of or infringement upon the owner's rights" ( Parklands E., LLC v. Spangenberg , 174 A.D.3d 1374, 1376, 107 N.Y.S.3d 212 [4th Dept. 2019] [internal quotation marks omitted]). Where a plaintiff's " ‘entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the [plaintiff] thereafter has assumed the attitude of hostility to any right in the real owner’ " ( Gallea v. Hess Realty Corp. , 128 A.D.2d 274, 275-276, 515 N.Y.S.2d 683 [4th Dept. 1987], affd 71 N.Y.2d 999, 530 N.Y.S.2d 105, 525 N.E.2d 750 [1988], quoting Hinkley v. State of New York , 234 N.Y. 309, 316-317, 137 N.E. 599 [1922] ). Based on our review of the trial evidence, we conclude that plaintiffs established by clear and convincing evidence that the use of Lot 10 constituted an...