| Villani v Holton |
| 2008 NY Slip Op 03809 [50 AD3d 1543] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Ronald R. Villani et al., Appellants, v Yvonne Holton et al.,Respondents. |
—[*1] Fein, Such & Crane, LLP, Chestnut Ridge (Samit G. Patel of counsel), fordefendant-respondent GMAC Mortgage Corp.
Appeal from a judgment (denominated order) of the Supreme Court, Niagara County(Timothy J. Walker, J.), entered January 23, 2007 in an action pursuant to RPAPL article 15. Thejudgment, inter alia, granted the motion of defendant Yvonne Holton to dismiss the complaint.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby denying the motion and reinstating the complaint and as modified the judgment is affirmedwithout costs.
Memorandum: Plaintiffs commenced this action pursuant to RPAPL article 15 seeking, interalia, a determination that they acquired title by adverse possession to an irregularly shaped parcelof property located along the border of parcels owned by plaintiffs and Yvonne Holton(defendant). Plaintiffs purchased their parcel to the west of defendant's parcel in 1985, anddefendant purchased her parcel in 2005. Shortly after plaintiffs purchased their parcel, the priorowners of defendant's parcel constructed a fence that is located approximately four feet to theeast of the property boundary, and plaintiffs thereafter cultivated a garden on that four-footportion of the property on the west side of the fence. Shortly thereafter, plaintiffs constructed afence from the east side of their home across the property line to the west side of the home ondefendant's parcel, and plaintiffs have maintained and cultivated the grassy area running southfrom that fence to the street.
Supreme Court erred in granting defendant's motion to dismiss the complaint for failureto state a cause of action (see CPLR 3211 [a] [7]). Accepting the facts alleged in thecomplaint as true and according plaintiffs the benefit of every favorable inference (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]; MacDonell v PHH Mtge. Corp., 45 AD3d 537, 538 [2007]), weconclude that plaintiffs have stated a cause of action for adverse possession (see RPAPL521). We therefore modify the judgment accordingly. We nevertheless conclude that the courtproperly denied the cross motion of plaintiffs seeking summary judgment on the complaintinasmuch as plaintiffs failed to establish as a matter of law that their possession of the disputedparcel was hostile and [*2]under a claim of right (cf. Walling v Przybylo, 7 NY3d228, 232-233 [2006]). Present—Scudder, P.J., Hurlbutt, Smith, Fahey and Gorski, JJ.