Real Property Law

In landowner's action for a judgment that it holds an easement over neighbor's property, neighbor appealed from Supreme Court's grant of a preliminary injunction, and from Supreme Court's denial of neighbor's motion to dismiss the complaint. The Appellate Division affirmed, holding that the evidence proffered by neighbor did not conclusively establish that landowner had no easement by necessity, pre-existing use, or prescription.

Landowner and neighbor own abutting lots in Brooklyn. The two lots originally formed a single parcel with a common driveway. When the lots were separated, a portion of the driveway was located on each of the lots. Landowner acquired its parcel in 1998, and has used the driveway to access a service area and parking area on its premises. In 2012, when neighbor acquired the abutting parcel, it began construction of a residential building. Construction impeded access to a portion of the driveway, and neighbor apparently planned to remove a portion of the driveway to install a yard for residents. Landowner then brought this action to enjoin blockage of the driveway, asserting easements by necessity, pre-existing use, and prescription. Supreme Court granted landowner's motion for a preliminary injunction, and denied neighbor's motion to dismiss. Neighbor appealed.