| Sawyer v Prusky |
| 2010 NY Slip Op 02055 [71 AD3d 1325] |
| March 18, 2010 |
| Appellate Division, Third Department |
| Sherman Sawyer et al., Appellants, v Dale Prusky et al.,Respondents. |
—[*1] Jordan & Kelly, L.L.C., Greenwich (Andrew C. Kelly of counsel), for respondents.
Spain, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered January 6,2009 in Washington County, which granted defendants' motion to dismiss plaintiffs' secondcause of action.
Plaintiffs and defendants own adjoining parcels of lakefront property located in the Town ofArgyle, Washington County. It is undisputed that, at the time plaintiffs acquired their property in1997 (hereinafter the Sawyer property), the boundary line between the Sawyer property and theproperty later acquired (in 1999) by defendants (hereinafter the Prusky property) was marked byiron survey pipes and a common walkway leading from the lake to Oaks Road. In 2008,defendants had their property surveyed and informed plaintiffs that the boundary line betweentheir parcels actually extended 10 feet into what they had treated as the Sawyer property(hereinafter the disputed strip). After defendants allegedly removed a rock wall placed byplaintiffs along the formerly recognized common boundary and installed a fence creating a newboundary 10 feet onto the Sawyer property, plaintiffs commenced this action seeking adeclaration that they are the owners of the disputed strip and that the iron survey pipes mark thecorrect common boundary. Plaintiffs asserted three causes of action: (1) to quiet title anddetermine interest in real property under RPAPL articles 6 and 15; (2) adverse possession; and(3) trespass. Defendants moved to dismiss the adverse possession cause of action for failure tostate a cause of action (see CPLR 3211 [a] [7]), which plaintiffs opposed. Supreme Courtgranted the motion and dismissed the adverse possession claim, and plaintiffs appeal.[*2]
On defendants' motion to dismiss for failure to state acause of action, plaintiffs' complaint is afforded a liberal construction and the benefit of everyfavorable inference, the facts alleged in the complaint and in any submissions in opposition areaccepted as true, and the court determines "whether the facts as alleged fit within any cognizabletheory," i.e., whether the plaintiffs "ha[ve] a cause of action, not whether [they have] stated one"(Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see 511 W. 232nd Owners Corp. vJennifer Realty Co., 98 NY2d 144, 151-152 [2002]; IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355,1356 [2008], lv denied 11 NY3d 706 [2008]). To prevail on this adverse possessioncause of action, commenced in September 2008, plaintiffs would be required to demonstrate thattheir possession of the disputed strip was adverse, exclusive, under a claim of right, open andnotorious, actual and continuous for a period of 10 years (see RPAPL 501 [2] [asamended eff July 7, 2008]; see also CPLR 212 [a]; accord Walling v Przybylo, 7 NY3d 228, 232 [2006]). Under 2008legislative enactments, a "claim of right" now requires "a reasonable basis for the belief that theproperty belongs to the adverse possessor or property owner" (RPAPL 501 [3] [as amended effJuly 7, 2008]). Supreme Court found that plaintiffs stated such a claim of right by alleging thatboth parties believed that the boundary line was marked by the old survey pipes, and thatelement is not in issue on appeal.
By statute, adverse possession claims are either premised upon a written instrument orjudgment (see RPAPL 511, 512) or not so premised (see RPAPL 521, 522). AsSupreme Court aptly noted, if plaintiffs hold title by deed to the disputed strip, they wouldprevail on their first cause of action and would not need to rely upon an adverse possessionclaim. However, since defendants' motion to dismiss was directed solely at plaintiffs' adversepossession claim, which is expressly based upon plaintiffs' deed[FN1](paragraph 20 of the complaint), we consider the claim as based upon a written instrument underRPAPL 511 and 512.
For such a claim of adverse possession founded upon a written instrument,
"land is deemed to have been possessed and occupied in any of the following cases:
"1. Where there [have] been acts sufficiently open to put a reasonable diligent owner onnotice.
"2. Where it has been protected by a substantial enclosure, except as provided in [RPAPL543 (1)].
"3. Where, although not enclosed, it has been used for the supply of fuel or of fencingtimber" (RPAPL 512). Plaintiffs' complaint alleges that between 1997 and 2008, they built a beach area up to theboundary line and swam and sunbathed on the disputed strip, built a rock wall on the commonboundary line, maintained the common walkway, mowed the lawn on the disputed strip, andplanted and stored supplies, equipment and personal property on the disputed strip adjacent tothe boundary. While these acts, accepted here as true, state acts of possession sufficiently openand notorious to put defendants on notice (see RPAPL 512 [1]; 501 [2]), the Legislaturein 2008 enacted RPAPL 543, which specifically refines what actions across boundary lines may[*3]constitute "adverse" occupancy. RPAPL 543 (1) nowprovides: "Notwithstanding any other provision of this article, the existence of de [minimis]non-structural encroachments including, but not limited to, fences, hedges, shrubbery,plantings, sheds and non-structural walls, shall be deemed to be permissive andnon-adverse" (emphases added). In light of this explicit statutory directive, Supreme Courtrightly concluded that plaintiffs' "rock wall" along the common boundary line is a"non-structural encroachment," reasoning that "while a rock wall is a substantial wall because ofits weight it will be deemed non-structural because it is not part of a structure nor does it providesupport to something else so as to be structural." As such, plaintiffs' rock wall cannot satisfy theadversity element essential to this claim. Likewise, plaintiffs' maintenance of the lawn, walkwayand beach and plantings do not constitute adverse occupancy, because RPAPL 543 (2), alsoenacted in 2008, now expressly provides: "Notwithstanding any other provision of this article,the acts of lawn mowing or similar maintenance across the boundary line of an adjoininglandowners's property shall be deemed permissive and non-adverse."[FN2]
We are not persuaded by plaintiffs' argument that RPAPL 543 is not applicable to thisadverse possession claim because it is premised upon RPAPL 512 (1), on plaintiffs' theory thatonly subdivision (2) of RPAPL 512 specifically refers to RPAPL 543. While RPAPL 512 indeeddefines, in the alternative, the manners by which land may be "possessed and occupied" forpurpose of adverse possession founded upon a written instrument/judgment, RPAPL 543 nowreclassifies certain actions across boundary lines that are deemed "permissive and non-adverse"as a matter of law, and RPAPL 543 (2) unambiguously applies to all adverse possessionclaims, i.e., "[n]otwithstanding any other provision of this article" (emphasisadded).[FN3]
Thus, taking the allegations of the complaint as true, plaintiffs do not have a claim foradverse possession and Supreme Court properly granted defendants' limited motion to dismissthe second cause of action.[FN4]
Peters, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: We express no opinion on whoholds title to the disputed strip.
Footnote 2: By contrast, under RPAPLformer 512 (1) and former 522 (1), land was deemed to have been possessed and occupied whereit had been "usually cultivated or improved" by the adverse possessor (see e.g. Goss v Trombly, 39 AD3d1128, 1129 [2007]; Robinson vRobinson, 34 AD3d 975, 976-977 [2006], lv denied 8 NY3d 805 [2007]).
Footnote 3: Were we to view plaintiffs'claim as one for adverse possession not under a written instrument (as did Supreme Court), thesame result would obtain. While plaintiffs' complaint alleges acts of possession and occupationthat are sufficiently open (see RPAPL 522 [1]), those actions would be non-adverse andpermissive under RPAPL 543.
Footnote 4: Plaintiffs did not raise the"boundary line by acquiescence" theory (see McMahon v Thornton, 69 AD3d 1157, 1160 [2010]) in theircomplaint or submissions in opposition to defendants' motion and, thus, we decline to address itsapplicability here.