Fact issues preclude summary judgment dismissing claims for prescriptive easement. Issues existed whether the use of the common driveway was hostile or permissive.

Second Department held mortgage lender made out a prima facie case for summary judgment by presentment of certified recorded chain of title inclusive of disputed power of attorney which had not been revoked of record, despite the petitioner’s filing of a notice of pendency prior to the recording of the mortgage. Mortgagee claimed the prior notice of pendency was invalid as it was not supported by a petition seeking possession or an interest in the property, and because the amended petition, which did seek an interest in the property, was not served within 30 days of the notice of pendency as required by the CPLR.

Case of first impression in the Appellate Division Second Department. The court applied the six year statute of limitations to a claim by a non-record owner, who was not in possession of realty, to vacate a recorded deed that allegedly was forged. This holding is distinguished from cases in the Appellate Division, the First Department, which applies the ten year statute of limitations applicable to quiet title claims.