| Sorbello v Birchez Assoc., LLC |
| 2009 NY Slip Op 03067 [61 AD3d 1225] |
| April 23, 2009 |
| Appellate Division, Third Department |
| Albert Sorbello, Appellant, v Birchez Associates, LLC,Respondent, et al., Defendant. |
—[*1] Ganz, Wolkenbreit & Friedman, Albany (Robert E. Ganz of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Lynch, J.), entered April 18,2008 in Ulster County, which, among other things, granted defendants' motion for summaryjudgment dismissing the complaint.
Plaintiff and defendant Birchez Associates, LLC each claim ownership to a tract of landknown as Hildebrant Lane located in the Town of Esopus, Ulster County, which abuts theirrespective properties and contains a private road leading to a public thoroughfare known as RiverRoad. Plaintiff commenced this action pursuant to RPAPL article 15 to quiet title to saidproperty alleging that he acquired title by deed and by adverse possession. Following service ofan answer by Birchez and one of its principals, defendant Steve Aaron, defendants moved forsummary judgment dismissing the complaint on the ground, among others, that plaintiff failed toname as parties to the action property owners whose land abuts the disputed parcel. Plaintiff, inturn, cross-moved for summary judgment on his adverse possession claim. Supreme Court,among other things, granted defendants' motion and dismissed the complaint, without prejudice,[*2]for failure to join necessary parties.[FN1]This appeal by plaintiff ensued.
RPAPL 1511 (2) provides that, in an action such as this, "[w]here it appears to the court thata person not a party to the action may have an estate or interest in the real property which may inany manner be affected by the judgment, the court, upon application of such person, or of anyparty to the action, or on its own motion, may direct that such person be made a party."Necessary parties are "[p]ersons who ought to be parties if complete relief is to be accordedbetween the persons who are parties to the action or who might be inequitably affected by ajudgment in the action" (CPLR 1001 [a]). Here, the record discloses that there are twoindividuals who own property that abuts Hildebrant Lane and who could be adversely affectedby the outcome of plaintiff's action, particularly if they had a right to use the private road on theproperty and this changed as a result of the litigation. In view of this, such individuals arenecessary parties to the action. However, rather than dismissing the complaint for the failure toname them, Supreme Court should have directed plaintiff to join them in the present action (see Dunkin Donuts of N.Y., Inc. vMid-Valley Oil Co., Inc., 14 AD3d 590, 592 [2005]). Inasmuch as we find this to be theappropriate remedy in the situation at hand, the complaint is reinstated and plaintiff is directed toamend it to add the abutting property owners as defendants in the action.
Turning to plaintiff's adverse possession claim, in order to prevail, he must demonstrate thathis possession of the disputed parcel was (1) hostile and under claim of right, (2) actual, (3) openand notorious, (4) exclusive, and (5) continuous for the required period of 10 years (see Walling v Przybylo, 7 NY3d228, 232 [2006]; see also RPAPL 521).[FN2]Upon reviewing the record, we find that plaintiff's cross motion for summary judgment on thisclaim is premature. While plaintiff and his wife provided affidavits detailing the activities thatplaintiff allegedly undertook concerning the disputed parcel dating back to 1973, when he claimsto have acquired title to it, there are inconsistencies between plaintiff's affidavit and his responseto the interrogatories served by defendants prior to the cross motion. In addition, it appears that,although plaintiff's deposition was previously scheduled, neither it nor the depositions of otherparties, including those to be joined as necessary parties, have yet been conducted. Furtherdiscovery is necessary in order to more fully develop the record and resolve the factualinconsistencies pertaining to plaintiff's adverse possession claim (see Banks v New York City Dept. ofEduc., 39 AD3d 787, 787 [2007]; Nelson v Bestway Coach Express, 36 AD3d 488, 488-489 [2007];Silver Dollar Shows v Town of Huntington, 152 AD2d 558 [1989]). This is especiallythe case where, as here, the facts necessary to successfully oppose the cross motion may exist butcannot be stated (see CPLR 3212 [f]; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636,637 [2006]). Accordingly, plaintiff is not entitled to summary judgment on his cross motion.
Cardona, P.J., Mercure, Rose and Kavanagh, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as granted defendants' motion forsummary judgment; motion denied and plaintiff is directed to amend the complaint by adding theabutting property owners, Joan Geraci and David Kren, as defendants in the action, with allfurther proceedings in the action stayed until such joinder has been accomplished; and, as somodified, affirmed.
Footnote 1: Upon the consent of the parties,Supreme Court also dismissed the complaint against Aaron.
Footnote 2: We note that the adversepossession law in New York was amended on July 7, 2008, subsequent to the commencement ofthis action (see L 2008, ch 269).