Kusmierz v. Herman

? unanimously affirmed with costs. Memorandum: We affirm the order essentially for the reasons stated in the decision of Supreme Court. We add only that defendants’ admission in 1976 that plaintiffs owned the disputed strip of land did not necessarily destroy a matured prescriptive right (see, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 123-124; New York State Elec. & Gas Corp. v Persson, 64 AD2d 194, 196, lv denied 46 NY2d 709). The allegations in defendants’ answer that the prescriptive use of the disputed property by defendants and their predecessors in title extended at least back to 1930 and possibly back into the 1800s raised a factual question concerning whether the prescriptive easement had matured before the use became permissive. Consequently, Supreme Court properly denied plaintiffs’ motion to dismiss defendants’ counterclaim and affirmative defenses based upon prescriptive easement. (Appeal from Order of Supreme Court, Wyoming County, Dadd, J.—Dismiss Counterclaim.) Present—Callahan, J. P., Doerr, Green, Balio and Lowery, JJ.