A prescriptive easement “is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period,” which is generally ten (10) years in the State of New York. See Carty et al. v. Goodwin, et al., Docket No. 2015-11899 (App. Div. 2d Dep’t May 10, 2017) (citations omitted). “In general, where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive.” Id. (citations omitted).

In Carty v. Goodwin, the Supreme Court of the State of New York, Appellate Division, Second Department, affirmed an order, entered after a non-jury trial, which determined that the plaintiffs “do not have a prescriptive easement over property owned by the defendants . . . .” The appellate court stated, in pertinent part, that “the record supports the [trial court’s] . . . determination . . . that [the plaintiffs] . . . failed to establish with clear and convincing evidence that they used the defendants’ property for vehicular access to the rear of their property and that such use was adverse, open and notorious, and continuous for the prescriptive period.” Id. (citations omitted).

COMMENTARY:

Under the law of the State of New York, permissive use cannot give rise to a prescriptive easement because permission negates the required element of adversity or hostility. Asserting (or defending against) a claim for a prescriptive easement on behalf of a client is something that Kenneth Allen Brown is well-suited to do given the experience of its attorneys.

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Kenneth Allen Brown (kabrown@kabrownlawfirm.com) is an experienced land use, real property, and commercial litigator, with over twenty-five years of experience. He focuses on the following areas of law in the State of New York: Boundary Disputes, Water Boundaries, and Riparian Rights, Land Use and Zoning Litigation, Real Property Litigation, Easement Litigation, and Commercial Litigation, including Partnership, Corporate, and Limited Liability Company Disputes. He is available to consult with potential clients regarding disputes between neighbors in the State of New York.

Whenever one neighbor claims ownership over some portion of another neighbor’s real property by virtue of the legal doctrine of adverse possession, the dispute between the record property owner of the disputed area and the would-be adverse possessor may escalate quickly and become very nasty, leading to expensive and time-consuming litigation. A recent appellate decision illustrates the legal limits upon would-be adverse possessors who may seek to satisfy the minimum 10-year statutory time period required for adverse possession by tacking (i.e., adding) their predecessors-in-title’s period of alleged adverse possession to their own period of alleged adverse possession. See Fidelina Diaz v. Mai Jin Yang, et al., Docket No. 2015-4291, 2017 NY Slip Op 01534 (2d Dep’t, March 1, 2017).

In Diaz, the appellate court reversed a court order that had denied the defendants’ summary judgment motion seeking dismissal of the plaintiff’s complaint, which was filed in October 2012 and which claimed, among other things, that plaintiff “has acquired title and all rights, by adverse possession, to the defendants’ portion of . . . [a] double garage and . . . [a] driveway” that were located partially on the plaintiff’s residential property, which she acquired on July 1, 2006, and partially on the defendants’ residential property. Id. It was undisputed that the plaintiff had not possessed the disputed area for ten continuous years, as required for adverse possession. Id.

To try to satisfy the statutorily required 10-year period, the plaintiff claimed that the periods of alleged adverse possession or use by her predecessors-in-title could be tacked on to her own period of alleged adverse possession or use. Id. As explained by the appellate court, “[i]n order for tacking to be applicable, a party must show that the party’s predecessor ‘intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed.’” Id. (citation omitted). In Diaz, the plaintiff failed to provide sufficient evidence to support her tacking argument, and, therefore, the appellate court determined that the defendants were entitled to summary judgment dismissing the plaintiff’s complaint.

COMMENTARY:

The case of Fidelina Diaz v. Mai Jin Yang, et al., Docket No. 2015-4291, 2017 NY Slip Op 01534 (2d Dep’t, March 1, 2017), arose from a dispute between adjoining property owners over the use and possession of a double garage and a shared driveway. Even though the plaintiff had owned her property for less than ten years, she claimed that she could satisfy the statutory ten-year period for the adjoining disputed area by tacking on to her predecessors-in-title’s prior periods of alleged adverse possession or use. The plaintiff’s deed, however, did not reflect any conveyance or transfer to the plaintiff of her predecessors-in-title’s alleged possession or use of the disputed area, and the plaintiff apparently did not have any other evidence to demonstrate her predecessor-in-title intention to transfer such alleged possession or use to the plaintiff. The plaintiff’s lack of such evidence was fatal to the plaintiff’s tacking argument.

Disputes over adverse possession can be complicated, expensive, and time-consuming. Before spending time and money pursuing a potentially defective adverse possession claim, you should consult with competent legal counsel licensed to practice law in the State of New York. We can help you!
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Kenneth Allen Brown (kabrown@kabrownlawfirm.com) is an experienced land use, real property, and commercial litigator, with over twenty-five years of experience. He focuses on the following areas of law in the State of New York: Boundary Disputes, Water Boundaries, and Riparian Rights, Land Use and Zoning Litigation, Real Property Litigation, Easement Litigation, and Commercial Litigation, including Partnership, Corporate, and Limited Liability Company Disputes. He is available to consult with potential clients regarding disputes between neighbors in the State of New York.

Disputes between neighbors may begin with something relatively insignificant and then escalate quickly and dramatically, leading, at times, to name-calling and hurt feelings on one or both sides of the dispute. Although civil lawsuits may be filed after such an unfortunate escalation, it is worthwhile to know the limits of what may be achieved in a court of law in the State of New York when one neighbor says things – maybe even nasty things — about another neighbor.

An appellate court recently issued a decision affirming a court order that, among other things, dismissed a complaint seeking damages for (i) defamation per se, (ii) defamation, (iii) harassment, and (iv) intentional infliction of emotional distress. See Gregory P. Scialdone v. John DeRosa, Jr., et al., 2017 NY Slip. Op. 01582 (App. Div. 2d Dep’t, Mar. 1, 2017). In Scialdone, the plaintiff — who is an attorney in the State of New York and who represented himself, pro se, in the appeal – was “a resident of an apartment complex owned and operated by the defendants . . . .” Id. According to the appellate court: “This action, and several others, arose out of a dispute over the plaintiff’s claim to entitlement to a third parking space at the [apartment] complex.” Id. (emphasis added).

In the plaintiff’s complaint, the plaintiff alleged that the defendants had defamed him by sending to various people — including friends and relatives, some of whom are the individual defendants — a letter regarding the parking space dispute. Id. The letter described the plaintiff as “quixotic,” “self-absorbed,” “narcissistic,” “ungrateful,” and “delusional,” and the letter also referred to the plaintiff as a “paranoid pompous ass.” Id.

In response to the plaintiff’s complaint, the defendants made their respective motions to dismiss the plaintiff’s complaint. Id. The Supreme Court of the State of New York, Westchester County (Jamieson, J.), by of way various orders, granted the defendants’ respective motions to dismiss. Id. On appeal, the appellate court affirmed the orders dismissing the plaintiff’s complaint. Id.

The appellate court began its analysis by stating certain fundamental principles applicable to pre-answer motions arguing that the plaintiff’s complaint fails to state any legally cognizable cause of action upon which relief may be granted. Id. First, the courts must accept as true all facts alleged in the plaintiff’s complaint. Id. Second, the courts must afford the plaintiff’s complaint a liberal construction. Id. Third, the courts must give the plaintiff the benefit of every possible inference that may be drawn from the allegations set forth in the complaint. Finally, the courts must determine “only whether the facts as alleged fit within any cognizable legal theory.” Id. (emphasis added; citations omitted).

Applying these well-settled procedural principles, the appellate court swiftly affirmed the orders dismissing the plaintiff’s claims in his complaint. With regard to the plaintiff’s causes of action seeking damages for defamation per se, the appellate court determined that “none of the alleged per se defamatory statements stated that the plaintiff had committed a serious crime or suffered from a ‘loathsome disease’” or “was a statement that would tend to injure the plaintiff in his trade, business, or profession.” Id. (citation omitted). With regard to the plaintiff’s claims seeking damages for defamation, the appellate court determined that “a reasonable reader would have concluded that the statements constituted expression of opinion, which are not actionable, rather than statements of fact, which are.” Id. (emphasis added; citations omitted). With regard to the plaintiff’s claims seeking damages for harassment, the appellate court noted that the State of New York “does not recognize a common-law cause of action alleging “‘harassment.’” Id. (citations omitted). Finally, with regard to plaintiff’s claim seeking damages for intentional infliction of emotional distress, the appellate court determined that the plaintiff’s complaint did not allege conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. (citations omitted)

COMMENTARY:

Residing in an apartment complex with a relatively limited number of amenities – such as parking spaces – may lead to various disputes between neighbors or between one or more of the residents and the management/owner of the apartment complex. In this case, a dispute over a parking space escalated when a letter containing unflattering remarks about one party – who is an attorney practicing law in the State of New York – was circulated to various people, at least some of whom apparently were not involved directly in the parking space dispute. While it is understandable why an attorney might be very upset about being referred to as a “paranoid pompous ass” and also being described as “quixotic,” “self-absorbed,” “narcissistic,” “ungrateful,” and “delusional,” the appellate court in Gregory P. Scialdone v. John DeRosa, Jr., et al., 2017 NY Slip. Op. 01582 (App. Div. 2d Dep’t, Mar. 1, 2017), was unwilling to expand the existing law so as to determine that the plaintiff’s complaint sufficiently alleged facts demonstrating that the attorney had any legally cognizable claims arising from the letter.

Before disputes between neighbors lead to personal animosities, escalations, and expensive and time-consuming litigation, competent legal advice should be sought.

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Kenneth Allen Brown (kabrown@kabrownlawfirm.com) is an experienced land use, real property, and commercial litigator, with over twenty-five years of experience. He focuses on the following areas of law in the State of New York: Boundary Disputes, Water Boundaries and Riparian Rights, Land Use and Zoning Litigation, Real Property Litigation, Easement Litigation, and Commercial Litigation, including Partnership, Corporate, and Limited Liability Company Disputes. He is available to consult with potential clients regarding disputes between neighbors in the State of New York.

A recent appellate court’s decision has affirmed an order that, among other things, dismissed a trespass claim by homeowners who had alleged that certain municipal employees “entered onto their property during the day and rang the doorbell or spoke to the plaintiff Henry Boring in the front yard . . . .” Henry Boring, et al. v. Town of Babylon, et al., Docket No. 2014-05075 (2d Dep’t Feb. 15, 2017). According to the appellate court’s decision in Boring, the homeowners’ allegations about the municipality’s employees entering upon the homeowners’ land failed to state a cause of action to recover damages for trespass, which has the following essential elements: (i) an intentional entry, (ii) onto the land of another, and (iii) without justification or permission. Id.

COMMENTARY:

In general, a person intentionally entering upon the land of another with either justification or a legal privilege is not a trespasser. Based solely upon the appellate court’s published decision in Boring, it does not appear that there were any exigent circumstances that might have justified the municipal employees entering the homeowners’ land. Id. On the contrary, it appears that the municipal employees were pursuing their official duties in a routine way. Id. Nevertheless, the appellate court in Boring determined that the municipal employees were sufficiently justified, as a matter of law, (i) to enter the homeowners’ property during the day and (ii) to speak with the one of the plaintiffs in the front yard. Tellingly, the appellate court in Boring supported its determination by citing to Alan D. Kucker, et al. v. Kaminsky & Rich, et al., 7 A.D.3d 491, 2004 NY Slip. Op. 03529 (2d Dep’t May 3, 2004), wherein the appellate court previously ruled that a defendant’s “unexceptional daytime entry onto the plaintiffs’ property to ring their doorbell to serve . . . an application to confirm an arbitration award in a case . . . was not unauthorized.” Id. (emphasis added). In Boring, however, the municipal employees apparently were not attempting to serve legal papers when they entered the homeowners’ land, and, therefore, Boring may constitute an incremental expansion of the rule of law represented by the appellate court’s previous decision in Kucker. To determine the existence of other potentially relevant facts and circumstances — including, but not limited to, whether the homeowners had posted a “No Trespassing” sign or had requested that the municipality’s employees leave the homeowners’ property after the initial entry onto the land — it would be necessary to review the entire appellate record and the parties’ respective appellate briefs in the Boring case.

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Kenneth Allen Brown (kabrown@kabrownlawfirm.com) is an experienced land use, real property, and commercial litigator, with over twenty-five years of experience. He focuses on the following areas of law in the State of New York: Boundary Disputes, Water Boundaries and Riparian Rights, Land Use and Zoning Litigation, Real Property Litigation, Easement Litigation, and Commercial Litigation, including Partnership, Corporate, and Limited Liability Company Disputes. He is available to consult with potential clients regarding disputes between neighbors in the State of New York.

In the State of New York, a wide variety of legal disputes may arise from ownership or use of real property in relation to other real property owned or used by neighbors, some of which may be difficult, nasty, or malicious. Although there are varying degrees of legal complexity associated with each kind of legal dispute that may arise between neighbors, it is generally advisable, before things turn nasty, to seek advice from professional legal counsel — licensed to practice law in the State of New York — with both knowledge and experience about the kinds of potential legal disputes that may arise between neighbors, including the following:

  • Land Use and Zoning Disputes
  • Nuisances and Spite Fences
  • Trespasses
  • Boundary Disputes
  • Encroachment Disputes
  • Water Boundary Disputes
  • Riparian Rights Disputes
  • Adverse Possession Disputes
  • Prescriptive Easement Disputes
  • License Disputes
  • Environmental Disputes
  • Right-of-Way or Easement Disputes
  • Covenants and Restrictions (“C&Rs”) Disputes
  • Lateral Support Disputes
  • Subjacent Support Disputes
  • Airspace Disputes
  • Scenic View Disputes
  • Fence Disputes
  • Tree Disputes

Each episode of “Negotiating, Neutralizing, and Nullifying Nasty Neighbors in New York” will address a specific kind of legal dispute that may arise between neighbors. Stayed tuned!

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Kenneth Allen Brown (kabrown@kabrownlawfirm.com) is an experienced land use, real property, and commercial litigator, with over twenty-five years of experience. He focuses on the following areas of law in the State of New York: Boundary Disputes, Water Boundaries and Riparian Rights, Land Use and Zoning Litigation, Real Property Litigation, Easement Litigation, and Commercial Litigation, including Partnership, Corporate, and Limited Liability Company Disputes. He is available to consult with potential clients regarding disputes between neighbors in the State of New York.

 

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