| Sugarman v Malone |
| 2008 NY Slip Op 01400 [48 AD3d 281] |
| February 14, 2008 |
| Appellate Division, First Department |
| Lydia K. Sugarman, Appellant, v Laurence F. Malone,Respondent, et al., Defendant. |
—[*1] Anthony M. Dattoma, Maspeth, for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about June11, 2007, which denied plaintiff's motion for a declaratory judgment and granted defendantMalone's cross motion for summary judgment dismissing the complaint, unanimously affirmed,without costs.
Plaintiff moved into the Manhattan cooperative apartment with her late husband Howard in1984, when the record owner of the shares was Howard's father, Jack. Howard died in 1990.When Jack died in 1995, he left the shares to his daughter (Howard's sister), who died a yearlater, leaving the property to her husband (defendant Malone). Malone asserted his interest in thepremises nine years later, prompting plaintiff to bring this action in 2005, seeking a declarationthat she is the rightful owner of the shares through adverse possession.
Any presumption of hostility to which plaintiff was entitled was defeated by her offer topurchase the shares from Malone in 1998, during the statutory period (see Albright vBeesimer, 288 AD2d 577, 578 [2001]; see also Manhattan School of Music v Solow,175 AD2d 106 [1991], lv denied 79 NY2d 820 [1991]). Although Malone was not therecord owner at the time of that offer, he had by that time acquired title by devise, and thus hadan ownership interest. Moreover, plaintiff's concession that she was initially permitted to possessthe premises because of her relationship by marriage, which was confirmed by Malone, wassufficient to rebut any presumption of hostility, and she has failed to raise an issue of fact in thisregard (see e.g. Wechsler v New York State Dept. of Envtl. Conservation, 193 AD2d856, 860 [1993], lv denied 82 NY2d 656 [1993]). Plaintiff's reference to conversationsshe had with the deceased prior owners was directly contradicted by her sworn statementssubmitted on prior motions, and thus cannot defeat Malone's cross motion for summary judgment(see Harty v Lenci, 294 AD2d 296, 298 [2002]).
Plaintiff's contention that Malone is not the proper party and does not have standing isunpreserved, and we decline to review it (see AFCO Credit Corp. v Zurich Am. Ins. Co.,45 [*2]AD3d 441, 442 [2007]). Were to consider it on the merits,we would reject it. Concur—Tom, J.P., Buckley, Gonzalez and Acosta, JJ. [See2007 NY Slip Op 31449(U).]