Merrick Road, Valley Stream, New York (hereinafter referred to as “the Misak

property”). By deed dated December 12, 1974, John and Carolyn Misak purchased the

property and business from Arthur Stadtmiller.

The defendants Arthur L. Rotondi and Barbara M. Rotondi individually, operate a

business called Precision Motorcycles and d/b/a Precision Leather (hereinafter collectively

& Dolls Billiard Lounge, Inc. (hereinafter collectively referred to as plaintiffs) located

at 175 East

Plaintiff’s/Petitioner’sDefendants/Respondent’s

In this case, plaintiffs John R. Misak, Carolyn M. Misak operate a business called

Guys

-against-

ARTHUR L. ROTONDI AND BARBARA M.ROTONDI, individually, and d/b/aPRECISION LEATHER,

Defendant(s).

The following papers read on this motion:Notice of Motion/ Order to Show CauseAnswering AffidavitsReplying AffidavitsBriefs:

32349/98

TRIAUIAS, PART 7NASSAU COUNTY

Plaintiff(s),INDEX NO.

& DOLLS BILLIARD LOUNGE, INC.,

ALLAN L. WINICK,Justice

JOHN R. MISAK, CAROLYN M. MISAK andGUYS

- STATE OF NEW YORKPresent:

HON.

MEMORANDUM DECISIONSUPREME COURT

& Dolls Billiard Lounge, Inc. in October of 1970 until 1996, the

Rotondi property was owned by Mr. Ott. By deed dated February 20, 1996 the property

2

12,1974, the Misaks ’ purchased the property from him.

Prior to the Rotondis ’ purchase of the property at 181-l 89 East Merrick Road, it was

owned by John Ott, Sr., now deceased. From the time plaintiffs took control over the

business operations of Guys

& Dolls Billiard

Lounge, Inc. Initially, the Misaks leased the building from Arthur Stadtmiller . On December

_.The use of the driveway located on the neighbors ’ property is the only means of access to

the rear of plaintiffs ’ building, except by going through plaintiffs ’ building.

Plaintiffs commenced the action demanding that defendants execute and deliver a

right of way over the driveway. Pursuant to CPLR 103(b) and CPLR 103(c), the action is

converted to a declaratory judgment action for a prescriptive easement over the driveway,

which runs over the defendants ’ land adjacent to the plaintiffs ’ land to the east abutting

plaintiffs ’ boundary line.

The plaintiffs have been using the driveway out of necessity. The only way for

plaintiffs to gain access to the rear and side of plaintiffs ’ building is by using the driveway

to traverse to and from the rear of the building. The driveway is approximately 123 feet in

length and 10 feet in width, and is directly next to and adjacent to the east side of plaintiffs ’

building and property line.

In October of 1970, plaintiffs began operating a business called Guys

-_

referred to as defendants) located at 181-l 89 East Merrick Road, Valley Stream, New York

(hereinafter referred to as “the Rotondi property ”).

The instant action arises from a dispute over plaintiffs ’ use of the abutting driveway

which is on the Rotondi property. The driveway abuts and is adjacent to plaintiffs ’ building.

&

Dolls Billiard Lounge, Inc. in 1970. Plaintiffs continued to use the driveway in the same

manner after they purchased the property in 1974. The only way for plaintiffs to perform

these activities in furtherance of their business enterprise is by using the driveway which

they had been doing for the past 30 years.

In October 1998, defendants refused plaintiffs, plaintiffs ’ employees and agents,

and plaintiffs ’ servicemen access to the driveway. As a result of the defendants ’ conduct,

plaintiffs ’ commenced an action to enjoin defendants from prohibiting plaintiffs to use the

3

& Dolls Billiard Lounge is by traversing across the driveway. The plaintiffs have

been regularly receiving oil deliveries to an outdoor underground oil tank at the rear of the

building by using the driveway. The plaintiffs have been removing their garbage and

receiving regular oil deliveries by using the driveway since they began to operate Guys

& Dolls Billiard Lounge, Inc. has its

only fire and emergency exit at the rear of the building and the only way out of and away

from Guys

.__. .used the driveway when they were tenants of Arthur Stadtmiller and after they purchased

the property from Arthur Stadtmiller in 1974. The driveway had been used by plaintiffs for

various activities to operate the billiard lounge. The plaintiffs used the driveway for regular

receipt of fuel oil deliveries to heat the building and as an egress to put out garbage several

times a week. The driveway was also used to inspect the exterior and make repairs to the

building. Furthermore, the driveway was used as an egress from the fire and emergency

exit which is located in the rear of their building. Guys

was conveyed by John Ott Sr. to the defendants Arthur and Barbara Rotondi. However,

prior to their purchase, the decedent John C. Ott, Sr., from 1984 to February 20, 1996

leased the property to the defendants.

Since October of 1970, plaintiffs ’ have been continuously using the driveway. They

traversi,ng across the driveway.

On direct examination, Mr. Misak testified:

Q And, as a result of that agreement, did you begin operating and managing

Guys and Dolls Billiard Lounge?

A Yes.

Q And when was that?

A October of 1970.

Q So, with the exception of the period when there was a fire for 17 months, you

used the subject driveway to take out garbage for the last 31 years.

4

& Dolls Billiard Lounge, Inc. was temporarily closed

because of a fire. The evidence at trial established that the plaintiffs used the driveway for

regular activities needed to operate the business. Plaintiffs have established by clear and

convincing evidence that the plaintiffs use of the driveway for regular delivery of fuel oil to

the underground tank located in the rear of the building and for regular removal of garbage

from the building was done without permission from either the defendants or their

predecessor in title.

Furthermore, the evidence at trial established that plaintiffs never requested

permission to use the driveway to effectuate repairs on their property. The only way the

repairs could have been performed on that portion of the building that abuts and is adjacent

to the driveway is by using and

.__.

driveway during the time that Guys

driveway. A temporary restraining order and preliminary injunction was continued until the

determination herein of this action for prescriptive easement over the driveway.

Plaintiffs maintain that they have been openly and continuously using the driveway

for more than (30) years with no interruption of use. Plaintiffs continued to use the

- during the first

5

-

10 days.

(Trial Transcript, Page 32, lines 3-l 0.)

Q Mr. Misak, during the period of time that it was closed, did

10 days, every

1970 ’s, with the exception of the period of time it was closed

for the fire, approximately how often would you receive oil deliveries?

A That usually depended on the weather. There were times we would get oil

deliveries every week, sometimes every six days, five days, and if the

weather got milder, we would get deliveries

would.have an air conditioning guy come

in. When the air conditioners got older, it was quite frequent to the summer

we needed repairs of the air conditioner. I had some brickwork done on the

side of the building, on the east side of the building. We would pull weeds.

There were constantly weeds growing along the edge. We would constantly

do that at least once a week. Maintain the gutter, the leader that was coming

out, we would paint the side of the building. We had various signs up on that

side of the building.

(Trial Transcript, Page24, lines 4-7, Page 25, lines l-9. )

Q And, during the

___. . .

taking out the garbage?

A Yes.

Q What was that?

A We had to do repairs each year. I

A Yes.

Q How long did you follow this procedure?

A From 1970 till today.

Q Were there any other uses that you used the subject driveway for besides

.-A To keep an eye on the contents, number one. Number two, the owner was

up in Jay, New York, in Lake Placid

THE COURT: This is in 1973 you started doing this?

MR. BLUMBERG: Yes, your Honor.

THE WITNESS: Yes.

A

Q

A

Q

A

Q

A

Q

A

I would go down there, insurance adjusters coming around. I would also go

down to safeguard the contents which were pool tables, valuable cue sticks

and other equipment in the place.

So during July, August and September of 1973, how often would you visit the

subject premises?

Everyday, Everyday.

Did you have any other job at that time?

No.

And when you visited the premises, did you have an opportunity to traverse

the subject driveway?

Yes.

Why?

It was the only way I could really get to the rear of the building to make sure

that there was no safety breach at the rear of the building, that the doors

6

___.

three months that it was closed, beginning in June of 1973, did you have the

opportunity to go down to the property?

A Yes.

Q Why would you do down to the property?

12,1974, the property was transferred to plaintiffs.

7

10 year prescriptive period has not been satisfied is

without merit. By deed dated December

5:30-6, sometimes I would come back at night.

After the first nine months that you visited almost on a daily basis, did there

come a time after from the nine months to the 17 months when it reopened

that you also visited the premises?

Yes.

And how often were those visits?

That would. be once, twice, three times a week.

(Trial Transcript, page 13, lines 12-20, Page 14, lines 2-4 and Page 25, lines 17-23.)

Defendants argument that the

___. . .How often did you visit?

Still almost everyday for about maybe seven or eight months.

And again when you visited, the subject premises, did you have to use the

subject driveway to inspect it?

Yes, I did.

What times of the day would you typically go during the first eight months that

the premises was closed?

I would be there from approximately 9 o ’clock in the morning, probably didn ’t

leave until

were secure, make sure nobody was hanging out in the back.

(Trial Transcript, Page 12, lines 3-l 1.)

Q

A

Q

A

Q

A

Q

A

Q

A

Q

A

After the first three months, did you continue to visit the subject premises?

Yes.

Pecksto Holdino Corp., supra; Borruso v Morreale,

supra). The burden does not shift where the use upon which a prescriptive easement is

8

2”d Dept., 1987).

An open, notorious, uninterrupted and undisputed use of a right of way is presumed

to be adverse and hostile and shifts the burden to the owner of the servient estate to prove

the use was permissive (DiLeo v.

AD2d

604,

NY505 1952; Borruso v Morreale, 129 Core.,, 304 Pecksto Holdino

Drivewav Easement. Tenant shall have an easement in common with

other tenants on the common driveway for access to the rear for parking ”.

The well-settled general rule is that an easement by prescription requires proof of

the adverse, open, notorious, and continuous use of another ’s land for the prescriptive

period (DiLeo v.

- 17). The fact that some of the tenants of the Rotondi

property may have used the driveway on occasion does not establish that the driveway was

used by the general public. The plaintiffs ’ use of the subject driveway was not in common

with the general public. In fact, John Ott, Sr. included in his lease with the Rotondis an

express easement allowing Ott ’s tenants to use the driveway. Paragraph 29 of the rider to

the lease states: “29.

cross-

examination, Page 55, Lines 8

.-defendants for permission to use or to traverse across the driveway.

Furthermore, the evidence at trial also established that the subject driveway was

not a common driveway for use by the general public. Mr. Misak testified that the driveway

was used by the tenants of the Rotondi Property ( see trial record, John Misak,

.__.

Defendants took occupancy of the Rotondi property as tenants in January, 1984.

Defendants maintain that as soon as they became tenants of the property, they prevented

plaintiffs from using the driveway, and when it was used by plaintiffs, it was pursuant to

defendants permission. The trial testimony clearly establishes that plaintiffs did not ask

& Do ll s B illi a r d Lounge , I nc . as tenan ts , and con ti nued a ft e r

they took titl e in 1974 up un til 1998 , when de fendan ts r e fused p la in tiff s and p la in tiff s ’

se r v ice m en access to use the d ri ve way .

O n c r oss - exa m ina ti on , M r. John O tt, J r. t es tifi ed :

Q D id M r. M isak eve r r eques t you r pe r m iss ion to r ece ive o il de li ve ri es th r ough

the sub jec t d ri ve way?

9

) t ha t p la in tiff s use o f t he d ri ve way was open , no to ri ous and con ti nuous fr o m 1970 ,

when p la in tiff s ope r a ted G uys

c r oss -

exa m ina ti on o f John M isak , A rt hu r Ro tond i and John O tt, J r. (t he son o f deceden t John O tt,

S r.

(See , Duke v So mm e r, sup r a ).

P la in tiff s de m ons tr a ted th r ough tri a l t es ti m ony , by d ir ec t, r ed ir ec t and

3rd Dep t. 1994 , CPLR 212 ). The law is we ll se ttl ed tha t on ly

pe r m iss ion fr o m the r eco r d owne r can nega te hos tilit y

Ad2d 1009 ,

2nd Dep t., 1999 ; Duke

v So mm e r, 205

Ad2d 429 , Zucke r, 261 10 yea r s ( Cove r da le v

.-Dep t., 2001 ). The de fendan ts ’ con ten ti on tha t t he d ri veway was used by the gene r a l pub li c

is w it hou t m e rit and unsuppo rt ed by the ev idence a t tri a l.

The r eco r d in the ins tan t case es tab li shes tha t t he on ly feas ib le m anne r by wh ich

p la in tiff s cou ld ga in access to the s ide o r r ea r o f t he ir p r ope rt y was by tr ave r s ing ac r oss the

d ri veway . The r eco r d suppo rt s the fi nd ing tha t t he p la in tiff s ’ use o f t he d ri veway was open ,

no to ri ous , un in te rr up ted and und ispu ted fo r t he p r esc ri p ti ve pe ri od . The s ta tu to r y

p r esc ri p ti ve pe ri od is

. __ . 873 ,4 *AD2d 2 ”d Dep t., 2000 ; Tu ll ev v Bav fr on t No rt h , 286 Ad2d 701 , Pa rk wav . I nc ., 275

4 th Dep t., 2000 ; R ive r m e r e Apa rt m en ts v S tone le iahAD2d 917 ,

4 * Dep t., 1971 ;

No rt h town v V ivacaua , 272

AD2d 441 , & O h io Ra ilr oad , 36

.

sough t i s no t exc lus ive and used by the gene r a l pub li c . ( P ir m an v Con fe r, 273 NY 357 ,

1937 , P r o - Fa t Coooe r a ti ve v Ba lti m o r e

Zucker, supra).

The testimony at trial was insufficient to overcome the proof of a prescriptive

easement as to the use of the driveway established by plaintiffs (Hrvckowian v Pulaski, 249

10

2nd Dept., 2002).

Once plaintiffs established that their use of the driveway was adverse under claim

of right, the burden shifts to the owner of the servient estate to prove that the use was

permissive or pursuant to a revocable license (Cloverdale v

, 2002

WL 341836,

AD2dAcauisition Corp.,Thurv v Britannia

.’

A None at all.

(Trial Transcript, Page 212, lines 6-8.)

As such, plaintiffs have established that their use of the- driveway was open,

notorious, uninterrupted and undisputed for well beyond the 10 year prescriptive period

(Borruso v Morreale, supra;

.__. .Q Did you ever see John Misak make repairs?

A No.

Q The people that you saw made repairs, was it your understanding they were

making repairs to the Misak property?

A Yes.

(Trial Transcript, page 204, lines 4-l 2.)

Q But you had no authority to grant or deny permission, right?

A No. No. Never me personally.

(Trial Transcript, page 200, lines 19-21.)

Q Did you ever see the Misaks use the subject driveway to make repairs?

A I saw people make repairs to the Misak property.

2nd Dept., 1998).

The tenants of the Rotondi property used the driveway pursuant to an express

easement. Plaintiffs established by proof at trial with clear and convincing evidence that

the driveway was not in common with the general public use. Furthermore, there was no

evidence at trial to establish that the use of the driveway was with permission.

As such, it is declared that plaintiffs have a prescriptive easement across the

property of defendants, commencing at the corner of plaintiffs ’ property, running 123.51

feet along the plaintiffs ’ and defendants ’ common boundary and then continuing across for

its 10 foot width along defendants ’ side of the building straight to the rear of defendants ’

property for the purpose of travel to and from the rear of plaintiffs ’ building to enable

plaintiffs to continue its business operation and make repairs to the side of plaintiffs ’

building. The plaintiffs use of the driveway is restored to its former state or functional

equivalent.

11

Ad2d 449, 2nd Dept., 1988; Frumkin v Chemtop, 251 AD2d 401,

2nd Dept., 1992; Boumis v Caetano,

140

AD2d 524, Corp. v Saccheri, 188

gavethem permission to use the driveway.

Furthermore, there was no testimony or evidence that the plaintiffs ’ use was

pursuant to a revocable license.

Nor did the evidence establish a relationship of cooperation and neighborly

accommodation giving rise to the inference of permissive use of the subject driveway (2239

Hvland Boulevard

.-testify whether John Ott, Sr., the decedent, ever

-__.

2nd Dept., 1994). The testimony

of John Ott, Jr., the son of the decedent John Ott, Sr., also failed to establish whether

plaintiffs were informed that any use of the subject driveway was pursuant to permission.

Defendants did not produce Arthur Stadtmiller, the prior owner of the Misak property, to

AD2d 476, Reinwalt v Accari, 201 2nd Dept.; AD2d 511,

Allan L. Winick J.S.C.

12

impedirrrent from

defendants, defendants’ representatives, agents, employees, successors and/or assigns.

A judgment shall be prepared declaring that plaintiffs have a prescriptive easement

to the use of the driveway for the purposes they have used it in the past delineating the

metes and bounds description of the prescriptive easement which shall be filed in the

Nassau County Clerk’s office against the section, block and lot numbers for each parcel of

property involving the Misak property located at 175 East Merrick Road, Valley Stream,

New York and the Rotondi property located at 181-l 89 East Merrick Road, Valley Stream,

New York.

Settle judgment on notice.

Dated: March 19, 2002

_.

business. The prescriptive easement runs with the land and will continue to exist for the

benefit of plaintiffs ’ successors and/or assigns and that any agent, representative,

servicemen and/or employee hired and/or acting at the plaintiffs ’ request or on plaintiffs ’

behalf, may utilize the prescriptive easement without interference or

The defendants are enjoined from interfering with the access and use of that

driveway by plaintiffs, their employees or delivery personnel. The plaintiffs have a

prescriptive easement on and over the driveway located at 181-I 89 East Merrick Road,

Valley Stream, New York to use the driveway to enable plaintiffs to continue to operate their