| Gallagher v Cross Hill, LLC |
| 2007 NY Slip Op 08334 [45 AD3d 1013] |
| November 8, 2007 |
| Appellate Division, Third Department |
| James L. Gallagher, Jr., et al., Respondents, v Cross Hill,LLC, Appellant. |
—[*1] Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (Michael J. Moore ofcounsel), for respondents.
Peters, J. Appeals (1) from an order of the Supreme Court (Lamont, J.), entered May 3, 2006in Schoharie County, which granted plaintiffs' motion for summary judgment, and (2) from thejudgment entered thereon.
In 2004, defendant purchased real property in the Town of Richmondville, SchoharieCounty, which bordered property owned by plaintiffs, or their family, since 1956. In 2003, aboundary dispute arose relating to a 1.87-acre parcel of defendant's land which was adjacent toplaintiffs' property. Plaintiffs, claiming to have openly and notoriously possessed, cultivated andimproved such parcel since 1987, commenced this action seeking title by adverse possession.Supreme Court granted their summary judgment motion. Defendant appeals.
It is well settled that "the proponent of a summary judgment motion must make a prima facieshowing of entitlement to judgment as a matter of law" (Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). And, "where a party seeks to establish title by adverse possession, it isincumbent upon the party 'to demonstrate by clear and convincing evidence that for a period of10 years it actually possessed the property in dispute and that such possession was open andnotorious, exclusive, continuous, hostile and under a claim of right' " (Kitchen v Village ofSherburne, 266 AD2d 786, 786 [1999], quoting Village of Castleton-On-Hudson vKeller, 208 AD2d 1006, 1008 [1994]; accord Knapp v Hughes, 25 AD3d 886, 890 [2006], lvdismissed 7 [*2]NY3d 921 [2006]). If such assertion is notbased upon a written instrument, the proponent must also produce evidence that the subjectpremises was " 'usually cultivated or improved' or 'protected by a substantial enclosure' "(Gallas v Duchesne, 268 AD2d 728, 729 [2000], quoting RPAPL 522 [1], [2]). The actsof improvement sufficient for these purposes "will vary with 'the nature and situation of theproperty and the uses to which it can be applied' " (Ray v Beacon Hudson Mtn. Corp., 88NY2d 154, 160 [1996], quoting Ramapo Mfg. Co. v Mapes, 216 NY 362, 373 [1915]; accord Robinson v Robinson, 34 AD3d975, 976 [2006], lv denied 8 NY3d 805 [2007]). When dealing with " 'wild andundeveloped land that is not readily susceptible to habitation, cultivation or improvement. . . the same quality of possession as residential or arable land' [will not berequired]" (Ray v Beacon Hudson Mtn. Corp., 88 NY2d at 160, quoting 7 Powell, RealProperty, Adverse Possession ¶ 1012 [2]).
Here, plaintiffs proffered affidavits from their predecessors in interest, photographs andsurvey maps. Jean Dittrick stated that she and her husband purchased plaintiffs' property in 1956as vacation property, using it with their family until 1972 when her husband sold it to theirchildren, plaintiffs James Gallagher, Jr. and Cynthia Hevey and her husband, plaintiff MichaelHevey. Dittrick averred that there was a wire fence separating her property from neighborHoward Hadsell, a predecessor in interest of defendant. Dittrick explained that Hadsell erectedthe fence to contain his dairy cows and that the disputed strip of property lies on plaintiffs' side ofthe fence; Hadsell never questioned whether the fence was the boundary line between theproperties. Dittrick further stated that plaintiffs maintained and posted this fence until the 1990swhen John Sherwood purchased defendant's property. These affidavits, either individually or intandem, aver that when plaintiffs' family purchased the property, there was a working outhouseon the disputed parcel which was used until its destruction in 1984. Also present was a refusedump which was ultimately bulldozed in or around 1957. Plaintiffs also claim to have installed agravity-fed shower on the parcel and to have used such parcel for hunting, cross-country skiing,horseback riding and other recreational activities on a continuous basis for over 40 years. Finally,Gallagher noted that between 1970 and 1990, Sherwood twice requested and received permissionfrom plaintiffs to used the disputed parcel.
Plaintiffs also produced a recent survey and an affidavit from Joanne Crum, a licensedsurveyor. Her review of a 1987 survey completed on behalf of Sherwood concluded that thefence line was considered to be the actual boundary between these properties, even thoughdefendant's property line was noted to extend past the fence line to include the disputed parcel.We agree that Crum's affidavit, photographs of the fence line through the years, testimonyconcerning the continuous use of the parcel throughout the years, as well as that addressing themaintenance of the fence, presented a prima facie showing by plaintiffs of entitlement to thedisputed parcel by adverse possession (see Ray v Beacon Hudson Mtn. Corp., 88 NY2dat 159-161; Robinson v Robinson, 34 AD3d at 977).
With the burden shifted to defendant to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d at 324), we are left to consider the duplicative affidavits from twoof its members who were on the property two days a month since defendant's purchase in 2004.While they averred that they have never seen plaintiffs use or occupy the disputed strip, theyfailed to address the years prior to defendant's ownership. Defendant also presented a survey andaffidavit from Richard Lape, a licensed surveyor, which primarily addressed the boundary linedispute. As to plaintiffs' claim of adverse possession, Lape merely stated that he did not find anyindication that plaintiffs used the land. Finding this showing inadequate, and recognizing that weare precluded from addressing defendant's recent claim that plaintiffs should only be entitled to[*3]partial summary judgment due to their limited use since suchissue was never raised before Supreme Court (see Soich v Farone, 307 AD2d 658, 660[2003]; Henry v Malen, 263 AD2d 698, 703 [1999]), we affirm.
Mercure, J.P., Spain, Carpinello and Mugglin, JJ., concur. Ordered that the order andjudgment are affirmed, with costs.