ADVERSE POSSESSION OR NEIGHBORLY ACCOMMODATION

CJA REALTY HOLDINGS, LP v. 14 PHILA ST. LLC, 2022 NY Slip Op 4208 - NY: Appellate Div., 3rd Dept. 2022:

"...An easement created by grant may be extinguished by adverse possession if the party seeking to extinguish the easement established, by clear and convincing evidence, that its use of the easement was hostile and under a claim of right, open and notorious, actual, exclusive and continuous for a period of 10 years (see Spiegel v Ferraro, 73 NY2d 622, 625 [1989]; EPG Assoc., LP v Cascadilla Sch., 194 AD3d 1158, 1163 [2021], lv dismissed 37 NY3d 1103 [2021]). A presumption that the use was hostile generally arises once all other elements of the adverse possession claim are established, thereby shifting the burden to the opposing party to demonstrate that the use was permissive (see Estate of Becker v Murtagh, 19 NY3d 75, 81-82 [2012]; Bekkering v Christiana, 180 AD3d 1276, 1279 [2020]). "However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise" (Schwengber v Hultenius, 160 AD3d 1083, 1084 [2018] [internal quotation marks and citations omitted]; accord Bekkering v Christiana, 180 AD3d at 1279-1280).

.....defendants' own submissions raise a question of fact as to whether use of the easement for enclosed outdoor seating and dining was permissive and under a claim of right (see Bekkering v Christiana, 180 AD3d at 1280-1281). Accordingly, Supreme Court properly denied defendants' motion for summary judgment (see id.; Kheel v Molinari, 165 AD3d 1576, 1578 [2018], lv denied 32 NY3d 1194 [2019]).

Turning to plaintiff's cross motion, relying on different proof than defendants, plaintiff has attempted to demonstrate that defendants' possession and use of the disputed portion of the easement was permissive, rather than hostile. However, plaintiff's submissions do not establish its entitlement to summary judgment as a matter of law, as a question of fact remains...."