| 2 N. St. Corp. v Getty Saugerties Corp. |
| 2009 NY Slip Op 09342 [68 AD3d 1392] |
| December 17, 2009 |
| Appellate Division, Third Department |
| 2 North Street Corporation, Respondent, v Getty SaugertiesCorporation, Appellant. |
—[*1] McMillan, Constabile, Maker & Perone, L.L.P., Larchmont (William Maker, Jr. of counsel),for respondent.
Peters, J.P. Appeals (1) from an order of the Supreme Court (Connolly, J.), entered June 19,2008 in Ulster County, which, among other things, granted plaintiff's motion for summaryjudgment, (2) from the judgment entered thereon, and (3) from an order of said court, enteredJanuary 5, 2009 in Ulster County, which denied defendant's motion to reargue and/or renew.
Plaintiff and defendant own adjoining parcels of real property in the Town of Saugerties,Ulster County. Plaintiff's property consists of a shopping center and parking lot which wasconstructed in 1977 by its predecessor in interest and purchased by plaintiff in 1994. Defendant'sproperty was developed for use as a gasoline station and opened for business in 1980. A fenceruns close to the boundary line between the properties, but lies entirely on defendant's property.A narrow 0.129-acre strip of land between the boundary line and the fence (hereinafter referredto as the strip) is in dispute.
In June 2007, plaintiff commenced this action seeking a declaration that it has title to thestrip by adverse possession. In its answer, defendant interposed counterclaims seeking, amongother things, to quiet title. Thereafter, plaintiff moved for summary judgment. Defendantcross-moved for, among other things, summary judgment dismissing the complaint or, in thealternative, a continuance pursuant to CPLR 3212 (f) to allow for further discovery. SupremeCourt granted plaintiff's summary judgment motion, finding that it had acquired title to the stripby way of adverse possession, and denied defendant's cross motion. Defendant's motion for[*2]leave to renew and/or reargue was denied. Defendantappeals.
Plaintiff was properly awarded summary judgment on its adverse possession claim. "Tosucceed on a claim of adverse possession, the possessor must establish by clear and convincingevidence that the character of the possession is hostile and under a claim of right, actual, openand notorious, exclusive and continuous for the statutory period of 10 years" (Robinson v Robinson, 34 AD3d975, 976 [2006] [internal quotation marks and citations omitted], lv denied 8 NY3d805 [2007]; see Walling vPrzybylo, 7 NY3d 228, 232 [2006]; Larsen v Hanson, 58 AD3d 1003, 1004[2009]; Gallagher v Cross Hill,LLC, 45 AD3d 1013, 1013 [2007]). So long as the use is open, notorious andcontinuous for the 10-year period, hostility will be presumed (see Goss v Trombly, 39 AD3d1128, 1129 [2007]; Fatone v Vona, 287 AD2d 854, 856 [2001]). Moreover, where,as here, the claim of title is not founded upon a written instrument, it must also be establishedthat the disputed premises was "usually cultivated or improved" or "protected by a substantialenclosure" (RPAPL former 522 [1], [2]; see Gallagher v Cross Hill, LLC, 45 AD3d at1013-1014; Comrie, Inc. v Holmes,40 AD3d 1346, 1346-1347 [2007], lv denied 9 NY3d 815 [2007]; Goss vTrombly, 39 AD3d at 1129).[FN1]
Plaintiff proffered photographs, a survey map and affidavits from Martin Rogowsky andSteve Rogowsky, its two principal owners and officers, as well as an affidavit from WilliamParr, a contractor who has maintained the strip since 1980 on behalf of plaintiff's predecessorand since 1994 on plaintiff's behalf. The affidavits establish that, after the fence was erected in1980 separating the strip from the rest of defendant's property, plaintiff's predecessor in interesthired Parr to fill and seed the strip, which was then a marshy area. Since that time, Parr hascontinuously and on a regular basis maintained the strip's grass, planted vegetation, removedrubbish and debris, and deposited snow plowed from plaintiff's parking lots upon it. Parr averredthat no one has ever objected to his activities, nor has anyone representing defendant granted himpermission to perform them. He further averred that he has never been informed that anyoneother than plaintiff and its predecessor owned the strip and that no one other than his company,on behalf of plaintiff or its predecessor, has performed such work. Both Martin Rogowsky andSteve Rogowsky stated that, since plaintiff's purchase in 1994, defendant has never objected toplaintiff's agents, employees or contractors going onto the strip, nor has permission to do so beengranted. Rather, they believed that they owned the strip and exclusively maintained it as theirown even though it was not included in their deed description. This evidence of plaintiff'scontinuous use and maintenance of the strip exemplified its possession as open and notorious,constituting notice to others that it was claiming an adverse and hostile interest in it (seeRobinson v Robinson, 34 AD3d at 977; Moore v City of Saratoga Springs, 296AD2d 707, 709-710 [2002]).
With respect to the requirement of usual cultivation or improvement,[FN2]the type of acts [*3]necessary to satisfy this mandate "will varywith 'the nature and situation of the property and the uses to which it can be applied' and must'consist of acts such as are usual in the ordinary cultivation and improvement of similar lands bythrifty owners' " (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160 [1996], quotingRamapo Mfg. Co. v Mapes, 216 NY 362, 373 [1915]; accord Gallagher v Cross Hill,LLC, 45 AD3d at 1014; Goss v Trombly, 39 AD3d at 1129). Notwithstandingdefendant's assertions to the contrary, Parr's activities on behalf of plaintiff and its predecessorover a period of 27 years were consistent with the nature, location and potential use of thisproperty—a narrow strip of grass between two commercial businesses (see Moore vCity of Saratoga Springs, 296 AD2d at 709-710; Fatone v Vona, 287 AD2d at 857;Boeheim v Vanarnum, 207 AD2d 582, 583 [1994]; Franzen v Cassarino, 159AD2d 950, 952 [1990]; Woodrow v Sisson, 154 AD2d 829, 831 [1989]).[FN3]Based on this proof, plaintiff made a prima facie showing of entitlement to the strip by adversepossession.
With the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]; Gallagher v Cross Hill, LLC, 45 AD3d at1015), defendant proffered the affirmations from its attorney and affidavits of an executivevice-president of its parent corporation. The affirmations of defendant's attorney, who had nopersonal knowledge of the operative facts, were without probative value and consequentlyinsufficient to defeat the motion (seeDukett v Wilson, 31 AD3d 865, 869 [2006]; Wagman v Village of Catskill, 213AD2d 775, 778 [1995]). Further, the bare conclusory assertions by the executive vice-presidentof defendant's parent corporation, which were unsupported by any independent factual basis,were insufficient to raise a triable issue of fact (see Golden Hammer Auto Body Corp. vConsolidated Rail Corp., 151 AD2d 545, 546 [1989]; see generally Zuckerman v City ofNew York, 49 NY2d at 562). Although defendant submitted affidavits alleging that, in May2007, plaintiff unsuccessfully negotiated to purchase its property, including the strip, apossessor's offer to purchase made after the 10-year statutory period has run will not defeat avalid claim of adverse possession (see Larsen v Hanson, 58 AD3d at 1005; Posnick vHerd, 241 AD2d 783, 785 [1997]). Thus, in the absence of any proof raising a triable issueof fact, Supreme Court properly granted plaintiff summary judgment on its adverse possessionclaim.
Nor are we persuaded that plaintiff's summary judgment motion should have been denied aspremature. Although "[a] motion for summary judgment may be opposed with the claim thatfacts essential to justify opposition may exist but that such material facts are within the exclusiveknowledge and possession of the moving party" (Pank v Village of Canajoharie, 275AD2d 508, 509 [2000]; see CPLR 3212 [f]; Rochester Linoleum & Carpet Ctr., Inc. v Cassin, 61 AD3d 1201,1202 [2009]), the party opposing the motion must make an evidentiary showing to [*4]support that conclusion (see Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007];Odorizzi v Otsego N. Catskills Bd. of Coop. Educ. Servs., 307 AD2d 490, 492 [2003];Scofield v Trustees of Union Coll. in Town of Schenectady, 267 AD2d 651, 652 [1999]).Here, defendant's proof fell short of the required showing, and its speculation that the discoveryprocess may yield evidence sufficient to defeat the motion is not enough (see Clochessy vGagnon, 58 AD3d 1008, 1010 [2009]; Lerwick v Krna, 29 AD3d 1206, 1209 [2006], lv denied 7NY3d 712 [2006]). Thus, we decline to disturb Supreme Court's discretionary determination onthis issue.
Finally, we are unpersuaded that Supreme Court erred in denying defendant's motion forrenewal.[FN4]" '[A] motion to renew must be based upon newly discovered evidence which existed at the timethe prior motion was made, but was unknown to the party seeking renewal, along with ajustifiable excuse as to why the new information was not previously submitted' " (Tibbits v Verizon N.Y., Inc., 40 AD3d1300, 1302-1303 [2007], quoting Wahl v Grippen, 305 AD2d 707, 707 [2003];see CPLR 2221 [e]; Matter ofCooke Ctr. for Learning & Dev. v Mills, 19 AD3d 834, 837 [2005], lv dismissedand denied 5 NY3d 846 [2005]). Here, the alleged "newly discovered evidence" consisted ofa purported written agreement—which was not produced—between defendant'sparent corporation and a third-party entity, KTB Associates, pursuant to which KTB allegedlyagreed to perform certain improvements on defendant's premises. This evidence, however, wasnot provided in defendant's initial moving papers but only in its reply papers and, therefore,Supreme Court acted well within its discretion in declining to consider it (see N.A.S.Partnership v Kligerman, 271 AD2d 922, 923 [2000]). Moreover, defendant failed to profferany justifiable excuse for its failure to offer such evidence in opposition to plaintiff's summaryjudgment motion (see Kahn v Levy,52 AD3d 928, 929 [2008]). "Renewal is not a means by which to remedy the failure topresent evidence which, with due diligence, could have been produced at the time of the originalmotion" (id. at 930 [citations omitted]; see Cippitelli v County of Schenectady,307 AD2d 658 [2003]). Finding no abuse of discretion, we will not disturb Supreme Court'sdecision to deny the renewal motion (see First Union National Bank v Williams, 45 AD3d 1029, 1030[2007]; Matter of Cooke Ctr. for Learning & Dev. v Mills, 19 AD3d at 838).
Rose, Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the orders and judgment areaffirmed, with costs.
Footnote 1: RPAPL 522 was amended onJuly 7, 2008, subsequent to Supreme Court's decision in this action (see L 2008, ch 269).
Footnote 2: Inasmuch as plaintiff suppliedno proof as to who installed or maintained the fence, Supreme Court properly found that plaintifffailed to establish that the strip was protected by a substantial enclosure and, therefore, couldrely only on the usual cultivation or improvement requirement (see RPAPL former 522[1], [2]).
Footnote 3: To the extent that defendantnow claims that plaintiff should not be able to "tack" on the use and activities of plaintiff'spredecessor in interest—particularly the filling and seeding of the strip—this issueis unpreserved for our review because defendant failed to raise it before Supreme Court (seeGallagher v Cross Hill, LLC, 45 AD3d at 1015; Maricevic v Prober, 305 AD2d 834,834-835 [2003]).
Footnote 4: We note that the denial of thatportion of defendant's motion seeking reargument is not appealable (see Wahl v Grippen,305 AD2d 707, 707 [2003]; N.A.S. Partnership v Kligerman, 271 AD2d 922, 922[2000]).