| Board of Mgrs. of Glen at Great Kills Homeowners Assn. v NBMRealty Holding, LLC |
| 2009 NY Slip Op 00489 [58 AD3d 778] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Board of Managers of Glen at Great Kills HomeownersAssociation, Appellant, v NBM Realty Holding, LLC, et al.,Respondents. |
—[*1] Menicucci Villa & Associates, PLLC, Staten Island, N.Y. (Richard A. Rosenzweig ofcounsel), for respondents.
In an action, inter alia, to quiet title to real property, for a judgment declaring that theplaintiff is the lawful owner, by adverse possession, of a certain parcel of real propertydesignated as Block 4645, Lot 275, on the tax map of the City of New York, and to invalidate aneasement granted to the defendants, the plaintiff appeals from an order of the Supreme Court,Richmond County (Maltese, J.), entered January 2, 2008, which granted the defendants' motionfor summary judgment, in effect, declaring that the plaintiff is not the lawful owner, by adversepossession, of Block 4645, Lot 275, and on a counterclaim pursuant to RPAPL 871 for apermanent injunction compelling the plaintiff to remove certain structures from Block 4645, Lot275, and other real property designated as Block 4645, Lots 310 and 325, on the tax map of theCity of New York, and denied the plaintiff's cross motion for summary judgment declaring that itis the lawful owner, by adverse possession, of Block 4645, Lot 275, and on the third, fourth,fifth, sixth, and seventh causes of action.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendants' motion were for summary judgment, in effect, declaring thatthe plaintiff is not the lawful owner, by adverse possession, of Block 4645, Lot 275, on itscounterclaim pursuant to RPAPL 871 for a permanent injunction compelling the plaintiff toremove certain structures from Block 4645, Lot 275, and dismissing the third, fourth, and fifthcauses of action, and substituting therefor provisions denying those branches of the motion; as somodified, the order is affirmed, without costs or disbursements.[*2]
The plaintiff is the Board of Managers of Glen at GreatKills Homeowners Association, which represents owners of residences at the Glen at Great Killsdevelopment located on Staten Island, consisting of three different communities. The Glen atGreat Kills (hereinafter the development) was constructed in different phases, with the firstphase built in the early 1980s. The Glen at Great Kills Homeowners Association (hereinafter theGlen HOA) is responsible for maintaining the common areas of the development. In May 2000the defendants purchased a parcel of real property designated as Block 4645, Lot 275 on the taxmap of the City of New York (hereinafter Lot 275) from Building a Rainbow Realty Corp.(hereinafter Rainbow), which was the sponsor of the development at that time. The plaintiffalleges that, since 1981, it has maintained a sign, landscaping, and a curb on a portion of Lot275, which is located near the entranceway to the development. When Rainbow transferred titleto Lot 275 to the defendants, Rainbow granted an easement across Lot 275 to Timber RidgeDrive, which is a private road used by the Glen HOA within the development. Rainbowconveyed Block 4645, Lot 276, which is adjacent to Lot 275 and contains Timber Ridge Drive,to the plaintiff after it created the easement and after it conveyed Lot 275 to the defendants. Theplaintiff commenced this action, inter alia, seeking to quiet title, through adverse possession, to adisputed portion of Lot 275 and to invalidate the easement. The defendants counterclaimedpursuant to RPAPL 871, seeking a permanent injunction compelling the plaintiff to removecertain encroaching structures from Lot 275, as well as to remove other structures and from thedefendants' property located at Block 4645, Lots 310 and 325 (hereinafter Lots 310 and 325).
The defendants moved for summary judgment on the counterclaims, in effect, declaring thatthe plaintiff is not the lawful owner, by adverse possession, of Lot 275, and dismissing thecomplaint, and the plaintiff cross-moved for summary judgment in its favor. The Supreme Court,inter alia, granted the defendants' motion. The court found that the easement was valid anddirected the plaintiff to remove the encroaching structures from Lots 275, 310, and 325. Theplaintiff appeals, and we modify the order appealed from.
The Supreme Court improperly granted those branches of the defendants' motion which werefor summary judgment, in effect, declaring that the plaintiff is not the lawful owner, by adversepossession, of Lot 275, and dismissing the plaintiff's third, fourth, and fifth causes of action,alleging that it acquired the disputed portion of Lot 275 by adverse possession. Under the versionof RPAPL 522 in effect at the time the plaintiff commenced this action, a party seeking to obtaintitle by adverse possession on a claim not based upon a written instrument was required to showthat the parcel was either "usually cultivated or improved" (RPAPL 522 [1]) or "protected by asubstantial inclosure" (RPAPL 522 [2]). Moreover, a party was required to satisfy thecommon-law requirement of demonstrating, by clear and convincing evidence (see Walling v Przybylo, 7 NY3d228, 232 [2006]), that the possession of the parcel was hostile, under claim of right, openand notorious, exclusive, and continuous for a period of 10 years or more (see East Hampton Livestock Corp. vFleming, 53 AD3d 641, 643 [2008]; Oistacher v Rosenblatt, 220 AD2d 493,494 [1995]). Here, the defendants failed to establish that the plaintiff's possession of the subjectproperty was permissive at the time it commenced possession (see Corigliano v Sunick, 56 AD3d1121 [2008]; see also Congregation Yetev Lev D'Satmar v 26 Adar N.B. Corp., 192AD2d 501, 503 [1993]). Accordingly, summary judgment should not have been awarded to thedefendants dismissing the third, fourth, and fifth causes of action, regardless of the sufficiency ofthe plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). Additionally, that branch of the defendants' motion which was for summaryjudgment on its counterclaim, pursuant to RPAPL 871, for a permanent injunction compellingthe plaintiff to remove the alleged encroaching items from Lot 275 [*3]should not have been granted (see RPAPL 871).
Contrary to the plaintiff's contention, the Supreme Court correctly granted that branch of thedefendants' motion which was for summary judgment on its counterclaim, pursuant to RPAPL871, for a permanent injunction compelling the plaintiff to remove encroaching structures fromLots 310 and 325. The plaintiff failed to raise a triable issue of fact in opposition to thedefendants' prima facie demonstration of their entitlement to judgment as a matter of law in thisregard (see Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]).
Furthermore, the Supreme Court correctly determined that the easement granting thedefendants access across Lot 275 to Timber Ridge Drive was valid and in full force and effect(see 49 NY Jur 2d, Easements § 23). Any claim of equitable ownership that theplaintiff may have had to Timber Ridge Drive before it acquired title thereto in November 2002,and before the easement was created in May 2000, was barred by the doctrine of laches (seeResk v City of New York, 293 AD2d 661 [2002]; Skrodelis v Norbergs, 272 AD2d316 [2000]; First Nationwide Bank v Calano, 223 AD2d 524, 525 [1996]).
The parties' remaining contentions are without merit. Prudenti, P.J., Spolzino, McCarthy andLeventhal, JJ., concur.