
    Nicholas H. Thisse et al., Appellants, v State of New York, Respondent.
   Order unanimously reversed, with costs, and motion denied. Memorandum: Plaintiffs and defendant are owners of adjoining property on the easterly shore of Francis Lake in Lewis County. When plaintiffs’ predecessors in title (the Gerards) purchased the property they were given a license to use an unimproved road that ran along the eastern shore of Lake Francis to gain access to the property from the public highway. The Gerards also built a dock extending into Francis Lake 25 feet from the shoreline of the property purchased by defendant State of New York by warranty deed in 1979. In 1980, the State installed a cable across the unimproved road and advised plaintiffs they could no longer use the road. The State also ordered plaintiffs to move their dock about 40 feet to the north. Plaintiffs brought this action pursuant to RPAPL article 15 to establish a prescriptive easement for use of the road and the dock.

Special Term erred in granting defendant’s motion for summary judgment because there are factual issues as to whether plaintiffs’ use of the road and dock was adverse or permissive (see Zuckerman v City of New York, 49 NY2d 557; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 123, app dsmd 58 NY2d 824). With respect to the road, the license upon which the State relies to rebut the presumption of adverse use specifically provided that the use of the unimproved road would be “deemed abandoned” once the new road was built. Evidence that the Gerards posted the old road and installed a locked chain across it would create a triable issue of fact as to whether there was adverse use of fact after consensual use under the license ceased.

With respect to the dock, the State alleges that plaintiffs leased the lot appurtenant to the dock and that the lessor-lessee relationship negates the presumption of adverse use. Plaintiffs allege, however, that the dock is secured by pilings driven into the lake extending approximately 25 feet from shore and that the lease did not pertain to use of the lake bottom but only to use of the lot. (Appeal from order of Supreme Court, Lewis County, Miller, J. — summary judgment.) Present — Dillon, P. J., Hancock, Jr., Green, Moule and Schnepp, JJ.  