| Hodges v Beattie |
| 2009 NY Slip Op 10020 [68 AD3d 1597] |
| December 31, 2009 |
| Appellate Division, Third Department |
| Robert Hodges et al., Respondents, v John C. Beattie,Appellant. |
—[*1] Briggs Norfolk L.L.P., Lake Placid (Matthew D. Norfolk of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Dawson, J.), entered September 10,2008 in Essex County, which, among other things, denied defendant's cross motion to dismissthe action.
Plaintiffs commenced this action to establish their right to title to a portion of defendant'sproperty, by means of adverse possession. Defendant owns property at 22 AcornStreet[FN*]in the Village of Lake Placid, Essex County. Plaintiffs purchased the adjoining property at 30Acorn Street in September 2005. In 2007, defendant notified plaintiffs that their driveway wasencroaching upon defendant's land. Plaintiffs expressed surprise, but arranged to have a surveyperformed, which confirmed that their driveway encroached upon defendant's property byseveral feet.
After unsuccessfully attempting to convince defendant to convey an easement over theencroaching portion of the driveway, plaintiffs asserted ownership thereof by way of adversepossession and requested conveyance of title to the property. When no satisfactory resolutionensued, defendant caused several large boulders to be placed on the disputed parcel. Plaintiffs[*2]then moved by order to show cause to compel a transfer tothem of the property in dispute pursuant to RPAPL article 5. The order to show cause containeda temporary restraining order, preventing defendant from entering onto the disputed property.
Defendant cross-moved to dismiss the matter for lack of personal jurisdiction on the basisthat it had not been properly commenced by the filing and service of a summons and complaint.Defendant also sought to vacate the temporary restraining order and requested an award of costsand counsel fees pursuant to 22 NYCRR 130-1.1. Supreme Court converted the order to showcause and its supporting papers to a summons and complaint pursuant to CPLR 103 (c), denieddefendant's cross motion to dismiss, awarded defendant costs in the amount of $100 andscheduled a hearing to determine whether sanctions were warranted. Defendant now appeals andwe affirm.
Initially, we note that "courts are empowered and indeed directed to convert a civil judicialproceeding not brought in the proper form into one which would be in proper form, rather than togrant a dismissal" (Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d87, 94 [1975]; see CPLR 103 [c]; Matter of Cromwell Towers Redevelopment Co. vCity of Yonkers, 41 NY2d 1, 5 [1976]). Thus, we discern no abuse of discretion in SupremeCourt's conversion of plaintiffs' order to show cause and supporting papers to a summons andcomplaint. Moreover, defendant waived any contention that he was not properly served with theorder to show cause by failing to raise that issue in his cross motion (see CPLR 3211;Page v Marusich, 30 AD3d 871, 873 [2006]; Enright v Vasile, 238 AD2d 543[1997]).
We also find unavailing defendant's argument that the papers filed by plaintiffs fail to state acause of action. As of the date this action was commenced, plaintiffs were required to prove thefollowing in order to establish their claim: "[p]ossession [of the disputed property] must be (1)hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5)continuous for the required [10 year] period" (Walling v Przybylo, 7 NY3d 228, 232[2006]; see RPAPL former 501). Here, plaintiffs' predecessors in interest averred that thedriveway had occupied the same location for at least 18 years prior to the date this action wascommenced and that they intended to take title to—and subsequently convey toplaintiffs—the driveway as now situated (see Brand v Prince, 35 NY2d 634, 637[1974]). Under these circumstances, although plaintiffs did not own the property for thestatutorily required time period, the period of possession of their predecessors in interest may beincluded (see id.).
Similarly, plaintiffs allege in their affidavit that they have openly, notoriously andcontinuously used the land as a driveway, thus collectively infringing on defendant's ability touse such land for more than 10 years (see Eddyville Corp. v Relyea, 35 AD3d 1063,1067 [2006] [requirement of hostility presumed met if use was open, continuous, and notoriousfor the full period required; only showing required is that it actually infringed upon the owner'srights]). Plaintiffs also allege that they and their predecessors in title made improvements to thecondition of the driveway (see RPAPL 522; Gallas v Duchesne, 268 AD2d 728,729-730 [2000]). Plaintiffs' written concession in 2007 that their driveway encroached ondefendant's property did not divest plaintiffs of any ownership rights that were previouslyobtained (see generally Larsen v Hanson, 58 AD3d 1003, 1004-1005 [2009]). Liberallyconstruing and accepting as true the facts alleged in the "complaint" and plaintiffs' submissionsin opposition to defendant's motion to dismiss—and without addressing the merits ofplaintiffs' claims—we conclude that plaintiffs have adequately stated a claim for adversepossession of the subject property (see generally 511 W. 232nd Owners Corp. v JenniferRealty Co., 98 NY2d 144, 151-152 [2002]; Leon v Martinez, 84 NY2d 83 [1994]).[*3]
Lastly, we note that defendant is not aggrieved bySupreme Court's decision to hold in abeyance his request for an award of sanctions pending ahearing. To the extent that defendant argues that Supreme Court should have imposed sanctionsagainst plaintiffs without first providing plaintiffs with an opportunity to be heard, we find suchcontention to be without merit (see 22 NYCRR 130-1.1 [d]).
Cardona, P.J., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: The property was formerlyknown as Forrest Street, and is referenced as such in various documents in the record.