Joy Builders, Inc. v. Shapiro

The plaintiff claims, inter alia, that it has an easement by implication over a paper road that crosses the defendants’ property, in order to access an intersecting public road. It was incumbent upon the plaintiff to make a prima facie showing, by clear and convincing evidence, that it was the intent of the original grantor, at the time of the original conveyance, to create *487the subject easement (see H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d 652, 654 [2007]; Michalski v Decker, 16 AD3d 469, 470 [2005]; Asche v Land & Bldg. Known as 64-29 232nd St., 12 AD3d 386, 387 [2004]; Palma v Mastroianni, 276 AD2d 894, 894 [2000]). The plaintiff failed to make that showing. Accordingly, its renewed motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

In light of the foregoing, we need not address the parties’ remaining contentions. Ritter, J.P., Florio, Miller and Dillon, JJ., concur.