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Adam Leitman Bailey Wins Heated Litigation After Aggressive Investigation Disproves Adversaries’ Prescriptive Easement Claims

Adam Leitman Bailey, P.C. was retained by the new purchaser of a house in the Hamptons to defend an ongoing case, brought by her neighbor, in which the neighbor claimed it had an prescriptive easement which gave it the right to continue to use the client’s property to access a nearby creek.  Though the previous owner of her property was unable to defeat these claims, when Adam Leitman Bailey P.C. entered the case and took the neighbor’s deposition, the neighbor’s entity dropped all claims.

The neighbor claimed that he and his family had moved into his house more than twenty years before, that he and his guests had used the client’s property since then to walk down to a creek, and that, since his entity owned the next door house, he and his family had the right to continue to use it.  The previous owner,  represented by another firm, brought a motion for summary judgment before discovery was done, but the court rejected it.  One of the reasons the court gave is that the town had been aware of the existence of a cleared path to the creek since at least 2015 because it had approved a survey showing it, and the town had never issued a violation.  The case was a loser, or a very difficult case, according to outgoing counsel.  Enter Adam Leitman Bailey, P.C.

The plaintiff-neighbor appeared to have used my client’s entrance to her property to get to the bay over a quarter mile away each summer for the last 20 years.  This attorney reminded me he was an expert on title insurance, in fact all he litigated was title claims. He argued that the neighbor could garner a prescriptive easement from using the walkway each season and only during the season.  We had other problems.  Outgoing counsel refused to give us their file and the discovery already produced.  The neighbor had planned his case for many years and waited for the property to be sold to my client who would have no knowledge of any past behavior.  And we had to spend money to conduct discovery because our shots at a motion to dismiss and summary judgement had been lost by prior counsel without our best arguments.  We had to obtain the discovery materials and papers from opposing counsel.

As with every property dispute at Adam Leitman Bailey, P.C., we always go to the property. You can never underestimate the amount one can learn. None of the other attorneys in this case had visited this property.  Here is what they missed: There was no walkway to get to the bay. It was covered by protected Hampton’s wetlands that were illegal to cut or move. It turned out that the neighbor could not get an affidavit or statement  from the house directly facing both of the parties homes.  We called the nice gentleman living in the house.  He did see the neighbor using his kayaks to fish and crab and exercise—but not on the bay. This neighbor on the other side of the street saw him daily during the summer months for years using the bridge next to his property to get to the ocean side and never saw him approach the front property of my client. He never did walk from his house 75 feet to the street and walk another 50 feet with heavy kayaks to the front of my client’s property.  And this neighbor confirmed that no other person in the world saw him at this location.  When examining the walkway, the few times the neighbor used the bay he would bring his kayaks to the edge of his property or as close to the bay that he could go even crossing another neighbor’s property and then put the kayaks and his body over the fence—wearing out this part of the fence.

This was a large victory for my client as she no longer had to worry about three quarters of the property that he claimed to have the right to walk on and pass through.  We found the sullied fence that must have been the entrance point on a cold day in November. But he still could see my client from this location, and her biggest fear was being seen naked in the shower if he stood on this spot far away from her glass house looking back. She was scared of him and this prospect of the loss of privacy for her and her two children as she is a single mother.

So as the facts got better and the town had woken up about protecting the land, we were now aware that it would be impossible to use this walkway without disrupting and harming protected wetlands. This provided another tool to winning the case because even if the neighbor won a prescriptive easement, if he was not allowed to use the walkway, he could not use the easement and if he did use it he would be using the land illegally.

We had prepared heavily for the deposition.  I started the questions going slowly into each time he had used the walkway to get to the bay. Collecting the names of every person that had joined him on his trips to the bay.  Very few people had gone to the bay with him in the last 20 years and his testimony made me wonder what these people would say when subpoenaed for a deposition. It also turned out that the neighbor was divorcing his wife who was also scheduled for a deposition which would provide more valuable evidence.  The only constant persons using the bay with him were his children but interestingly they had taken years off which made me wonder if the neighbor had any witnesses for each of the consecutive years he needed to claim his prescriptive easement.   And the firm developed evidence from the surveyor to demonstrate that the survey that the town had approved in 2015 showed only half the path that was claimed, and that the other half did not exist.

                Then came the deposition of the neighbor.  He did not remember being on the property on any specific occasion, and was unable to explain exactly when he had used what he referred to as the Path, but he admitted that he’d cut down the vegetation there whenever and wherever it got in his way.  Since Adam Leitman Bailey P.C. could show that the neighbor’s conduct was in violation of the town’s Wetlands Ordinances, it knew it could attempt to obtain a violation from the Department of Land Management.

Because the deposition was long and slow and with pointed questions on every detail, the neighbor lost his temper many times during the deposition and admitted breaking the law by taking metal tools to cut the wetlands in violation of New York Law.  He also admitted not using much of the path to get to the bay.  He also could not remember using the bay for 10 consecutive years.  By the end of the deposition he looked and his words seemed like he was defeated.  It was only a matter of days until he surrendered and ended his case forever giving up his claim for access to the bay which his house did not provide.  My client once again had her privacy and her children’s privacy and she felt her life was whole again.

Adam Leitman Bailey represented the prevailing owner sued for a prescriptive easement.

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