| Lodol v Arbus |
| 2007 NY Slip Op 10112 [46 AD3d 765] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Marie Lodol, Appellant, v Julian Arbus,Respondent. |
—[*1] Victor F. Villacara, Patchogue, N.Y. (Benjamin D. Russo of counsel), forrespondent.
In an action, inter alia, for an injunction directing the defendant to remove an encroachingstructure pursuant to RPAPL 871, the plaintiff appeals from an order of the Supreme Court,Suffolk County (Mayer, J.), dated February 1, 2007, which denied her motion for summaryjudgment.
Ordered that the order is affirmed, with costs.
The plaintiff and the defendant own separate parcels of property which are included in a1925 subdivision map. The rear of their lots abut opposite sides of Corriere Place, a 20-foot-widepaper street mapped on the 1925 subdivision map. The plaintiff and the defendant each have titleto the one-half portion of the roadbed of Corriere Place which abuts their property, with thecenter of the roadbed forming the property line (see Borducci v City of Yonkers, 144AD2d 321, 323 [1988]).
The plaintiff purchased her property in September 2005 and commenced the instant action inDecember 2005, inter alia, for an injunction directing the defendant to remove what shedescribed as a shed and driveway on a portion of her property which lay in the roadbed ofCorriere Place. The defendant claimed adverse possession as an affirmative defense.
The plaintiff moved for summary judgment, claiming that the defendant's alleged adversepossession did not continue for the statutory period of 10 years (see RPAPL 501), on theground that as long as Corriere Place remained a paper street, the defendant could not claimadverse possession of the roadbed unless he established that his possession was adverse to all theproperty [*2]owners in the subdivision, citing O'Hara vWallace (83 Misc 2d 383 [1975], mod on other grounds 52 AD2d 622 [1976]). Thecertificate of abandonment of Corriere Place was not signed until 1996 and was not approveduntil 1997.
The "paper street" rule referred to in O'Hara v Wallace (83 Misc 2d 383, 387 [1975],mod on other grounds 52 AD2d 622 [1976]) and relied upon by the plaintiff provides thatan easement in a street created by reference to a filed map can be extinguished only by the unitedaction of all the lot owners for whose benefit the easement was created (see Guardino vColangelo, 262 AD2d 777, 779 [1999]). This rule has no application here, since we aredealing with rights to title, not easement rights.
There are issues of fact with respect to the defendant's affirmative defense of adversepossession. Accordingly, the plaintiff failed to establish its prima facie entitlement to summaryjudgment. Goldstein, J.P., Fisher, Carni and McCarthy, JJ., concur.