| DeRosa v DeRosa |
| 2009 NY Slip Op 00498 [58 AD3d 794] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Thomas J. DeRosa, Appellant, v Josephine DeRosa,Respondent. |
—[*1] Thomas G. Sherwood, LLC, Garden City, N.Y. (James P. Truitt III of counsel), forrespondent.
In an action, inter alia, for the partition of real property, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated July 13, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint and for summary judgmenton her counterclaim to acquire title to the subject property by adverse possession, and denied hiscross motion for a judgment declaring that he had an undivided one-half interest in the property.
Ordered that order is affirmed, with a costs.
By deed dated August 3, 1954, the plaintiff, then the sole owner of the subject property,conveyed an undivided one-half interest in the property to his parents, Joseph DeRosa and LillieDeRosa. At that time, the plaintiff resided on the premises with his parents and his three sisters,including the defendant. In or about the year 1969, the plaintiff moved out of the property anddid not reside there again. By deed dated July 14, 1975, following the death of her husband,Lillie DeRosa conveyed her interest in the property to her daughter, the defendant, limited by alife estate to herself. After Lillie DeRosa died in 1983, the defendant continued to reside on theproperty. In 1985, the defendant encumbered the property with a mortgage, which was recorded.
By summons and complaint dated September 21, 2006, the plaintiff commenced the instant[*2]action against the defendant, inter alia, for the partition of thesubject property. The defendant interposed a counterclaim claiming, among other things, that sheacquired title to the property by adverse possession. The defendant subsequently moved forsummary judgment dismissing the complaint and for summary judgment on her counterclaim toacquire title by adverse possession. The plaintiff cross-moved for a judgment declaring that hehad an undivided one-half interest in the premises. The Supreme Court granted the defendant'smotion for summary judgment, finding that she established the elements of adverse possession,and the court denied the plaintiff's cross motion. We affirm.
Following the death of Lillie DeRosa in 1983, the plaintiff and the defendant becamecotenants of the subject property. Thus, contrary to the defendant's contention, she did notacquire title to the property by written instrument (the 1975 deed). A party seeking to obtain titleto real property by adverse possession not based upon a written instrument must establish thatthe property was either "usually cultivated or improved" (RPAPL 522 [1]) or "protected by asubstantial inclosure" (RPAPL 522 [2]). In addition, the party must demonstrate, by clear andconvincing evidence, the common-law requirements of adverse possession: (1) that thepossession was hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive,and (5) continuous for the statutory period (see Walling v Przybylo, 7 NY3d 228, 232 [2006]; Ray vBeacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]; DuMaurier v Lindsay-Bushwick Assoc., L.P., 39 AD3d 460, 461[2007]; Hall v Sinclaire, 35 AD3d660, 662 [2006]).
Where, as here, the party claiming adverse possession is a tenant-in-common in exclusivepossession, the statutory period required by RPAPL 541 is 20 years of continuous exclusivepossession before a cotenant may acquire full title by adverse possession (see Myers vBartholomew, 91 NY2d 630, 632 [1998]). RPAPL 541 creates a statutory presumption that atenant in common in possession holds the property for the benefit of the cotenant (id.; Russo Realty Corp. v Orlando, 30AD3d 499, 500 [2006]). "Absent ouster, a cotenant may begin to hold adversely onlyafter 10 years of exclusive possession. RPAPL 541's statutory presumption, therefore,effectively requires 20 years—or two consecutive 10-year periods—of exclusivepossession before a cotenant may be said to have adversely possessed a property owned bytenants-in-common" (Myers v Bartholomew, 91 NY2d at 634-635). This is because eachcotenant has an equal right to possess the premises as if they were the sole owner and"nonpossessory cotenants do not relinquish any of their rights as tenants-in-common whenanother cotenant assumes exclusive possession of the property" (id. at 633).
In support of her motion for summary judgment, the defendant established, prima facie, herentitlement to judgment dismissing the complaint and judgment on her counterclaim to acquiretitle by adverse possession. The defendant established that she resided exclusively at thepremises for 10 years following the death of her mother in 1983 and that, for the next 10 years,she actually, openly and notoriously, exclusively and continuously possessed the property.Where, as here, the use of the property is open, notorious, and continuous for the full statutoryperiod, a presumption of hostility under a claim of right arises (see Katona v Low, 226AD2d 433, 434 [1996]; see also Belotti v Bickhardt, 228 NY 296 [1920]; Wildove vPapa, 223 App Div 211, 215 [1928]). In addition, the defendant satisfied her burden of proofof either usual cultivation or improvement by demonstrating activity which was "consistent withthe property's character, location, condition and potential uses" (Groman v Botar, 228AD2d 412, 413 [1996]).
In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable[*3]issue of fact. Fisher, J.P., Dillon, McCarthy and Belen, JJ.,concur.