Since the early 1980s, defendant Garcia Management has operated a Dunkin’ Donuts franchise on property that includes a 15-foot-wide alley that leads to the road from the back of the parcel. Since 2010, Shu Zhu Zheng has owned property that abuts the eastern boundary of the alley, on which she has operated a Chinese restaurant since 1998. Don Bekkering owns two parcels of property that abut the alley on its eastern boundary and one parcel that abuts on its western boundary, which he acquired at different times between 1973 and 2004 and which contain a funeral home, parking lots, and apartments. It appears undisputed that, throughout the parties’ operation of their respective businesses, they, their customers, and their vendors have used the alley for ingress and egress to their respective properties.

In 2015, Garcia Management sought and obtained approval from the local government to add a drive-through window to its establishment and to make the alley an exit-only passageway. Bekkering averred that, since he purchased his first parcel in 1973, he and his customers have used the alley to enter and exit his property at least 20 times per month for funerals and several times per week for customer meetings. Zheng averred that her customers and vendors used the alley almost daily since 1998. Representatives of Garcia Management acknowledged that they were aware of such use of the alley by Bekkering, Zhang, and their respective invitees. Based on these facts, Bekkering and Zhang argue that have a prescriptive easement to use the alley; thus Garcia Management cannot impede on their use of the alley by installing the drive-through. This case occurred in New York, where the statutory period is 10 years.

Have Bekkering and Zhang met the elements necessary for a prescriptive easement?