| Gallo v City of New York |
| 2008 NY Slip Op 04316 [51 AD3d 630] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Umberto Gallo et al., Respondents, v City of New York etal., Appellants. |
—[*1] Robert W. Hiatt, Staten Island, N.Y., for respondents.
In an action pursuant to RPAPL article 15 for a judgment declaring that the plaintiffs are theowners of certain real property, the defendants appeal, as limited by their brief, from so much ofan order of the Supreme Court, Richmond County (Mega, J.), dated September 14, 2006, asdenied those branches of their motion which were for summary judgment, in effect, declaringthat they are the owners of the disputed real property and for summary judgment on their firstcounterclaim for a judgment of possession.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thosebranches of the defendants' motion which were for summary judgment, in effect, declaring thatthey are the owners of the disputed real property and for summary judgment on their firstcounterclaim for a judgment of possession are granted, and the matter is remitted to the SupremeCourt, Richmond County, for further proceedings on the defendants' remaining counterclaim andthereafter the entry of a judgment, inter alia, declaring that the defendants are the owners of thedisputed real property.
The plaintiffs commenced this action to establish title to a parcel of real property by adversepossession. In the order appealed from, the Supreme Court, among other things, denied thosebranches of the defendants' motion which were for summary judgment, in effect, declaring thatthe defendants are the owners of the disputed real property and for summary judgment on theirfirst counterclaim for a judgment of possession. The Supreme Court determined that triableissues of fact [*2]existed as to whether the property could besubject to a claim for adverse possession. We reverse the order insofar as appealed from.
A municipality cannot lose title through adverse possession to property that it owns in itsgovernmental capacity (see Kings ParkYacht Club, Inc. v State of New York, 26 AD3d 357 [2006]; Monthie v Boyle Rd.Assoc., 281 AD2d 15, 20 [2001]; Casini v Sea Gate Assn., 262 AD2d 593, 594[1999]). Here, the defendants established their prima facie entitlement to judgment as a matter oflaw by demonstrating that the subject property is held in their governmental capacity. Althoughthe defendants have leased the property to private entities who utilize it for commercial purposes,the defendants established that despite the leases, the subject property is nonetheless held in agovernmental capacity for the significant public purpose of monitoring leachate and themigration of landfill gas from the Fresh Kills Landfill. The existence of a private profit motive bythe lessees does not preclude the operation of the property from serving a public purpose (see Matter of County of Clinton vDrollette, 6 AD3d 968 [2004]; Matter of County of Erie v Kerr, 49 AD2d 174,180 [1975]). In opposition to the defendants' prima facie showing, the plaintiffs failed to raise atriable issue of fact. Accordingly, the Supreme Court should have granted those branches of thedefendants' motion which were for summary judgment, in effect, declaring that they are theowners of the disputed real property and for summary judgment on their first counterclaim for ajudgment of possession. We remit the matter for further proceedings on the defendants'remaining counterclaim and, since this is a declaratory judgment action, thereafter, for the entryof a judgment, inter alia, declaring that the defendants are the owners of the disputed realproperty (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371US 74 [1962], cert denied 371 US 901 [1962]). Spolzino, J.P., Angiolillo, Balkin andLeventhal, JJ., concur.