| Corigliano v Sunick |
| 2008 NY Slip Op 08773 [56 AD3d 1121] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| Russell A. Corigliano et al., Appellants, v John S. Sunick et al.,Respondents, et al., Defendant. |
—[*1] Edward A. Pace, Orchard Park, for defendants-respondents.
Appeal from an order of the Erie County Court (Timothy J. Drury, J.), entered January 8,2007 in an action pursuant to RPAPL article 15. The order granted the motion of defendants JohnS. Sunick and Mary Sunick for summary judgment.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the amended complaint is reinstated.
Memorandum: Plaintiffs commenced this action on October 21, 2004 pursuant to RPAPLarticle 15 seeking, inter alia, a determination that they are the lawful owners of specified realproperty based on their adverse possession of the property and are entitled to remove the fenceerected on that property by John S. Sunick and Mary Sunick (defendants). According todefendants, however, they are the lawful owners of the property and plaintiffs' use of the propertywas permissive. We conclude that County Court erred in granting defendants' motion forsummary judgment dismissing the amended complaint.
It is well settled that, in order to acquire title to real property by adverse possession, thepossessor must establish by clear and convincing evidence " 'that the character of the possessionis hostile and under a claim of right, actual, open and notorious, exclusive and continuous. . . for the statutory period of 10 years' " (West Middlebury Baptist Church v Koester, 50 AD3d 1494, 1495[2008]; see Walling v Przybylo, 7NY3d 228, 232 [2006]). In addition, under the version of RPAPL 522 in effect whenplaintiffs commenced this action, in the event that the claim of adverse possession was "notbased upon a written instrument[, the possessor was required to] show that the parcel was either'usually cultivated or improved' (RPAPL 522 [1]) or 'protected by a substantial [e]nclosure'(RPAPL 522 [2])" (Qualben vAiello, 53 AD3d 604, 605 [2008]).
Here, both plaintiffs and defendants agree that plaintiffs' possession of the disputed propertywas actual, open and notorious, exclusive and continuous for the 10-year statutory period, andthey tacitly agree that the property was "usually cultivated or improved" as required [*2]by the applicable version of RPAPL 522 (1). The only disputedcomponents of adverse possession before us therefore are whether plaintiffs' possession of theproperty was hostile and under a claim of right (see Tubolino v Drake, 178 AD2d 951,952 [1991]). "Possession is hostile when it constitutes an actual invasion of or infringement uponthe owner's rights [and a] claim of right is [b]y definition . . . adverse to the titleowner and also in opposition to the rights of the true owner" (United Pickle Prods. Corp. v Prayer Temple Community Church, 43AD3d 307, 308 [2007], lv denied 9 NY3d 977 [2007] [internal quotation marksomitted]). In our view, defendants' own submissions in support of the motion raise an issue offact whether plaintiffs entered the disputed property without the permission of defendants'predecessors in interest (cf. Ropitzky vHungerford, 27 AD3d 1031, 1032-1033 [2006]), thus rendering summary judgmentinappropriate with respect to those two components of adverse possession (see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Scudder, P.J.,Centra, Fahey, Peradotto and Green, JJ.