This matter came to Adam Leitman Bailey, P.C. (ALBPC) at the beginning of 2017. The resulting decision issued by the Appellate Division on March 9, 2023 – six years later – shows how dogged investigation was important to finding the evidence necessary to persuade both the trial court and the appellate court to rule in favor of ALBPC’s client.

Close Avenue is a mapped but unopened and unpaved, one-block-long street in the Bronx, running north-south between Bruckner Boulevard and Storey Avenue. It is mainly used to facilitate access to and from the commercial warehoused businesses located along the block. Since the 1960’s, there have been gates at both the North and South ends of the street which are locked after business hours to prevent theft and vandalism.

Since 1999, the O’Farrell family, who operate a  scaffolding business and who own the two lots on opposite sides of the southern end of Close Avenue (the “900 Lots”), have controlled the Storey Avenue Gate (“Gate 1”) that controls ingress and egress to Close Avenue between the 900 Lots. In 2015, the O’Farrells installed a second gate (“Gate 2”) at the northern end of their two lots to control access to and secure that part of Close Avenue lying between their lots, to protect the trucks and equipment overnight.

The O’Farrells also own a lot on the eastern side of Close Avenue (the “950 Lot”) that is located immediately above the 900 Lot they own at the southern end of the block on same side of the avenue.

This was a battle to the end. The adversary spent his life savings trying to beat our client the O’Farrells, but no person’s life savings is enough to beat Adam Leitman Bailey  P.C.’s premiere team of Bailey/Desiderio/Metz.  Even the now retired head of a title insurance company told me that this would be our first losing case involving prescriptive easements.  We slugged it out and gave it everything we had. War waged in the courthouse and disrupted the peaceful Bronx.  Even the CIA and Defense Contractors became part of the story.  On a personal note, I am very proud to work with these legendary lawyers.  This was a case we were supposed to lose.  Heart won out.   I never had any doubts.  Not for a minute.

All the remaining lots on Close Avenue between the O’Farrells’ properties and the northern end of Close Avenue are owned by Ciminello Property Associates (CPA). All of the CPA properties on Close Avenue are rented to CPA’s tenants.

For many years, the O’Farrells permitted CPA’s tenants to use the eastern half of Close Avenue abutting the O’Farrells’ 950 Lot. However, after Gate 2 was installed, CPA objected to certain Jersey barriers the O’Farrells had installed alongside of the 950 Lot, claiming that the barriers obstructed the access of its commercial tenant who rented the property across from the 950 Lot.

CPA then sued the O’Farrell companies, which own the 950 Lot and the two 900 Lots, and sought a declaratory judgment that Ciminello had either an implied or prescriptive easement  over the full length and width of Close Avenue.

A prescriptive easement is the right to use and pass over land to another property or public thoroughfare, after having done so, without permission, for a ten-year period without interruption. The courts hold that the principles for acquiring title to property by adverse possession are analogous to acquiring a prescriptive easement, except that there is no requirement for the claimant to prove exclusive use during the ten-year prescriptive period.

CPA based its claim on its predecessor owner’s control of the avenue and CPA’s purported use and maintenance of the whole length of the avenue from as early as the 1970’s, and that the O’Farrells essentially were johnny-come-lately interlopers who were preventing CPA’s tenants from the free use and access of Close Avenue to carry on their businesses.

In addition to seeking compensatory and punitive damages, for alleged trespass, CPA asked the Court to permanently enjoin the O’Farrells from placing physical impediments or otherwise interfering with the ability of CPA, its tenants, and their respective invitees and guests, to make use of Close Avenue to its full length and width, or to otherwise interfere with CPA’s easement in, upon, over and through Close Avenue.

Despite CPA’s claim that it controlled use of Close Avenue, and that CPA had been solely responsible for maintaining the Close Avenue roadbed and for snow removal, for more than 30 years before the O’Farrels acquired their Close Avenue properties, the O’Farrells were able to produce evidence refuting CPA’s claims.

CPA initially moved for a preliminary injunction to enjoin the O’Farrell’s control of Gate 1 and 2. However, the trial court ruled that “CPA’s evidence ‘falls far short of establishing a prescriptive easement by clear and convincing evidence.” The trial court held that “a review of all of the evidence shows that CPA’ use of the purported easement was not hostile but appears to have been permitted as a matter of neighborly accommodation.”

The trial court’s ruling denying the grant of a preliminary injunction was affirmed on appeal. The Appellate Division ruled that CPA had “failed to demonstrate a likelihood of success on the merits.”

The parties then engaged in extensive discovery proceedings. Longtime residents and business owners from the local community testified that prior to the installation of gates at the northern and southern ends of Close Avenue, the avenue had been freely accessed by the public, including commercial traffic, drug dealers, prostitutes, and derelicts. CPA was unable to produce evidence rebutting the community witnesses and could not produce any evidence to support its own claimed easement over the avenue. Indeed, CPA’s own commercial tenant testified that its access from Storey Avenue was essentially permissive access given by the O’Farrells to facilitate the tenant’s use of the Storey Avenue Gate.

At the conclusion, the O’Farrell’s moved for summary judgment, and the trial court granted the motion.

CPA appealed again to the Appellate Division which, in affirming the trial court’s grant of summary judgment to the O’Farrells, held that CPA “failed to establish the requisite elements of exclusivity and hostility required for a prescriptive easement,” and that “the record on summary judgment reflects that, since at least 1999, [the O’Farrells] had controlled access to the south gate at Storey Avenue, and that [CPA] and its tenants’ use of the disputed portion of Close Avenue had been permissive. The testimony of [CPA’s] tenants further established that they permitted members of the general public to access Close Avenue and traverse the south gate during regular business hours by using the keys obtained from the [O’Farrells].”

When CPA made its first objections to the O’Farrells’ control of access to Close Avenue from Storey Avenue, the O’Farrells brought their problem to Adam Leitman Bailey, P.C., and Adam Leitman Bailey, P.C. advised that, in order to refute CPA’s claimed easement, it was imperative to find long term members of the community who could recollect how Close Avenue had been used by business and members of the public over the past 40 years. Fortunately, there were members of the public with strong ties to the local community who were willing to truthfully recount their memories of what had occurred on Close Avenue.