Gold v. Huang — 285 A.D.2d 580

Majority

p. 580

Samuel Gold et al., Appellants, v Hui-Yin Huang, Respondent.

[727 NYS2d 915]

—In an action pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O’Connell, J.), dated March 28, 2000, which denied their separate motions for summary judgment and a preliminary injunction enjoining the defendant from erecting a fence.

Ordered that the order is affirmed, with costs.

The plaintiffs failed to make a prima facie showing that they obtained title to a portion of the defendant’s property by adverse possession, as their alleged possession was not open

p. 581

and notorious (see, Van Valkenburgh v Lutz, 304 NY 95 ; Village of Castleton-On-Hudson v Keller, 208 AD2d 1006 ; Tubolino v Drake, 178 AD2d 951 ; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118 ). Furthermore, as their alleged use of the defendant’s property was not open and notorious, the plaintiffs did not make a prima facie showing that they obtained a prescriptive easement over the property (see, Merriam v 352 W. 42nd St. Corp., 14 AD2d 383 ). Therefore, the Supreme Court properly denied their motion for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v City of New York, 49 NY2d 557 ).

The Supreme Court properly denied the plaintiffs’ motion for a preliminary injunction enjoining the defendant from erecting a fence, as they failed to demonstrate a likelihood of success on the merits (see, CPLR 6301).

The plaintiffs’ remaining contentions are without merit. S. Miller, J. P., H. Miller, Schmidt and Cozier, JJ., concur.

Cases cited

Van Valkenburgh v. Lutz 304 NY 95 N.Y. 1952-04-23 p. 581
Village of Castleton-On-Hudson v. Keller 208 AD2d 1006 N.Y. App. Div. 1994-10-13 p. 581
Tubolino v. Drake 178 AD2d 951 N.Y. App. Div. 1991-12-26 p. 581
City of Tonawanda v. Ellicott Creek Homeowners Ass'n 86 AD2d 118 N.Y. App. Div. 1982-04-12 p. 581
Merriam v. 352 West 42nd Street Corp. 14 AD2d 383 N.Y. App. Div. 1961-11-14 p. 581
Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 p. 581
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 p. 581