GOLD v. BERKOWITZ

Ordered that the order is modified by deleting the provision granting the plaintiffs' motion for a preliminary injunction and substituting therefor a provision denying the plaintiffs' motion for a preliminary injunction; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs assert an easement over a portion of the defendants' property adjacent to their own in order to access a piazza on their property. The plaintiffs allege that they and/or their tenants have been continuously using the defendants' property for the prescriptive period. The defendants contend that the use has been intermittent, not continuous. The defendants further contend that any use was permissive. Accordingly, triable issues of fact exist, which preclude the granting of summary judgment ( see, Rogers v Holmes, 217 AD2d 609).

Furthermore, the preliminary injunction was improperly granted, since the plaintiffs' likelihood of success is uncertain and there has been no showing of irreparable harm ( see, Aetna Ins. Co. v Capasso, 75 NY2d 860; Van Deusen v McManus, 202 AD2d 731).