| Silipigno v F.R. Smith & Sons, Inc. |
| 2010 NY Slip Op 01863 [71 AD3d 1255] |
| March 11, 2010 |
| Appellate Division, Third Department |
| Joseph C. Silipigno, Respondent, v F.R. Smith & Sons,Inc., Appellant. |
—[*1]
Garry, J. Appeal from an order of the Supreme Court (Aulisi, J.), entered March 20, 2009 inWarren County, which partially granted plaintiff's motion for summary judgment.
In 1997, plaintiff purchased a parcel of real property located in the Town of Bolton, WarrenCounty. The parcel is bordered on the south by Lake George and on the west by defendant'sproperty, on which a marina has operated since approximately 1922. A narrow strip of landlocated along the boundary line between the parties' properties is disputed in this action. Beforeclosing on his property, plaintiff obtained a survey indicating that the disputed parcel, which isseparated from the remainder of his property by a fence, was part of the parcel that he wasbuying. At that time, defendant was in the process of constructing a concrete pad and twoaboveground fuel tanks on a portion of the disputed parcel (hereinafter the pad area). Plaintiffwas then contacted by Frank Smith, defendant's then-president, who allegedly explained that hewas aware that the pad and tanks were on plaintiff's property and that he hoped to reach anagreement with plaintiff for defendant's continued use of the disputed parcel, as he allegedly hadwith prior owners. Smith subsequently signed a written agreement prepared by plaintiff's counselacknowledging that plaintiff owned the disputed parcel and providing that plaintiff would permitdefendant to use it in exchange for various services to be provided by defendant, including thesale of gasoline for his boat and jet ski at a set price. Smith died in 1999 and, in 2001,defendant's vice-president sought to increase the gasoline price. Plaintiff objected, and defendantadvised that it was not bound by the agreement because it had acquired title to the disputedparcel [*2]by adverse possession.
Plaintiff then commenced this action to compel the determination of claims to the disputedparcel pursuant to RPAPL article 15, alleging trespass and nuisance and seeking declaratory andinjunctive relief. Defendant answered and counterclaimed, asserting that any title claimed byplaintiff had been extinguished by its adverse possession over a 50-year period. Plaintiff movedfor summary judgment declaring that he was the record title owner of the disputed parcel andthat any use by defendant was permissive. Supreme Court partially granted the motion withrespect to the pad area. The court therefore directed the removal of the pad and tanks; the motionas to the remainder of the parcel was denied. Defendant appeals.
Plaintiff submitted deeds and surveys establishing that he is the record owner of the disputedparcel and that the concrete pad and fuel tanks encroach on his property. He also submitted,among other things, affidavits from plaintiff and his predecessor in title stating that defendant'suse of the disputed parcel during their periods of ownership, from 1985 through the present, waspermissive. He thus met his initial burden to establish his prima facie entitlement to judgment asa matter of law (see Klotz vWarick, 53 AD3d 976, 978 [2008], lv denied 11 NY3d 712 [2008]; Lavine vTown of Lake Luzerne, 296 AD2d 793, 793-794 [2002], lv denied 99 NY2d 501[2002]), shifting the burden to defendant to establish the existence of material issues of factrequiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Specifically, defendant wasrequired to reveal questions of fact as to whether its "possession was hostile and under a claim ofright, actual, open and notorious, exclusive and continuous for a period of 10 years" (Gallas vDuchesne, 268 AD2d 728, 729 [2000] [internal quotation marks, citations and bracketsomitted]; see RPAPL former 521, 522; Ray v Beacon Hudson Mtn. Corp., 88NY2d 154, 159-160 [1996]).[FN1]In seeking to meet this burden, defendant initially contends that Smith's acknowledgment that thedisputed parcel belonged to plaintiff is irrelevant because its title ripened long before eitherplaintiff or his immediate predecessors in title owned the property (see Guariglia v BlimaHomes, 89 NY2d 851, 853-854 [1996]; City of Tonawanda v Ellicott Cr. HomeownersAssn., 86 AD2d 118, 123-124 [1982], appeal dismissed 58 NY2d 824 [1983]).Defendant further contends that since at least the 1950s, it had believed that it owned thedisputed parcel, had used it to store such items as canoes, oil drums and boat racks, and hadburied several underground fuel tanks partially or entirely in the disputed parcel.[FN2]
As defendant is not making its claim under a written instrument, it may establish title byadverse possession "only [to] that portion of the disputed premises that was cultivated, improvedor protected by a substantial enclosure" (Robinson v Robinson, 34 AD3d 975, 976 [2006], lv denied8 NY3d 805 [2007]). First, the fence separating the disputed parcel from the remainder of theproperty cannot satisfy the enclosure requirement because, as defendant concedes, it was not[*3]erected by defendant, but by plaintiff's predecessors in title;further, although defendant claims that another fence previously existed in the same location,there is no evidence that defendant constructed it (see Gallas v Duchesne, 268 AD2d at729-730; Yamin v Daly, 205 AD2d 870, 872 [1994]). Second, as to defendant's allegeduse of the disputed parcel for storage, even if the presence of engine parts, lumber, and other"relatively insubstantial" materials (Campano v Scherer, 49 AD2d 642, 643 [1975]) werefound sufficient to support an adverse possession claim, there is no evidence of the exactlocations where these items were stored or that they were stored in the pad area (see id.).Finally, defendant contends that there are material issues of fact as to whether one of the buriedfuel tanks extended, in whole or in part, into the pad area. In this regard, defendant submitted theaffidavits of a former employee, a fuel delivery person, and its vice-president indicating that thetanks were present for many years and describing their size, dimensions, and generallocations.[FN3]However, the mere fact that persons who were quite familiar with defendant's operations wereaware of a tank's existence does not indicate that its invisible presence underground constitutedan "open and notorious act[ ] of possession . . . sufficient to supply the recordowner with notice of an adverse claim" (Ray v Beacon Hudson Mtn. Corp., 88 NY2d154, 160 [1996] [citation omitted]; seeRobinson v Robinson, 34 AD3d 975, 976 [2006]). Although it is alleged that each tank'spresence was indicated by a capped pipe protruding above ground, it was not shown that anypipe was located in the pad area or that there was any other above-ground indication of thepresence of a tank there. The orientation, size, and dimensions of a buried tank are simply notvisible. Thus, defendant has not established factual issues as to whether the potential presence ofan underground tank in the pad area "was somehow open and notorious as to landowners on thesurface" (City of Kingston v Knaust, 287 AD2d 57, 61 [2001]; see Albany GarageCo. v Munson, 218 App Div 240, 242 [1926], affd 245 NY 613 [1927]). Therefore,we agree with Supreme Court that defendant has not met its burden of revealing questions of factas to its cultivation or improvement or otherwise demonstrated open and notorious possession ofthe pad area, and find no reason to disturb its order.
Cardona, P.J., Peters, Spain and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: The recent amendments toRPAPL article 5 are inapplicable to this action, which was commenced before the amendmentstook effect (see L 2008, ch 269).
Footnote 2: All of these tanks had beenfilled or removed before plaintiff acquired his property, but defendant alleges that at least one ofhis predecessors in title was aware that there were buried tanks in the general area.
Footnote 3: Defendant's submissions revealthat even its long-time employees are not certain of the exact location or orientation of the tanks.At his deposition, the vice-president, who has worked for defendant since 1983, drew anapproximate sketch map that placed no tanks in the pad area. He subsequently revised thisplacement, indicating by affidavit that, based on the tanks' size and dimensions, some part of oneof them must have extended into the pad area.