| Conklin-Penwell v Riverhead Lodge, No. 2044, B.P.O. Elks |
| 2009 NY Slip Op 03471 [61 AD3d 916] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Kelly Conklin-Penwell, Appellant, v Riverhead Lodge,No. 2044, B.P.O. Elks, Respondent, et al., Defendant. |
—[*1] Kaufman Dolowich & Voluck LLP, Woodbury, N.Y. (Michael V. DeSantis and Jamie A.Rowsell of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff is the lawful owner, byadverse possession, of a certain parcel of real property, the plaintiff appeals from a judgment ofthe Supreme Court, Suffolk County (Weber, J.), dated January 14, 2008, which, after a nonjurytrial, is in favor of the defendant Riverhead Lodge, No. 2044, P.B.O. Elks, and against herdismissing the second, third, fourth, fifth, sixth, seventh, eighth, and ninth causes of actioninsofar as asserted against that defendant and, in effect, declaring that she is not the lawfulowner, by adverse possession, of the real property.
Ordered that the judgment is affirmed, with costs.
"A party seeking to obtain title by adverse possession on a claim not based upon a writteninstrument must show that the parcel was either 'usually cultivated or improved' or 'protected bya substantial inclosure' (RPAPL 522)" (Seisser v Eglin, 7 AD3d 505, 505-506 [2004]). "Where there is'actual continued occupation of premises under claim of title, exclusive of any other right' notfounded upon a written instrument, 'the premises so actually occupied, and no others, are deemedto have been held adversely' (RPAPL 521). In addition, the party must satisfy the common-lawrequirements by demonstrating by clear and convincing evidence that the possession of theparcel was hostile, under claim of right, open and notorious, exclusive, and continuous for thestatutory period of 10 years" or more (id. at 506; see Walling v Przybylo, 7 NY3d 228, 232 [2006]; Ray vBeacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]; Brand v Prince, 35 NY2d634, 636 [1974]; Oak Ponds v [*2]Willumsen, 295 AD2d587 [2002]; MAG Assoc. v SDR Realty, 247 AD2d 516 [1998]). Reduced to itsessentials, the required common-law elements mean "nothing more than that there must bepossession in fact of a type that would give the owner a cause of action in ejectment against theoccupier throughout the prescriptive period" (Brand v Prince, 35 NY2d at 636).
Here, the Supreme Court properly, in effect, declared that the plaintiff was not the lawfulowner, by adverse possession, of the subject real property claimed by the respondent since sheconceded that the claim was not based upon a written instrument and she failed to present anyevidence that the disputed property was "cultivated or improved" or "substantially inclosed" byher or her predecessor in title, as required under the statute (see RPAPL 522;Giannone v Trotwood Corp., 266 AD2d 430 [1999]; Simpson v Chien Yuan Kao,222 AD2d 666 [1995]; Yamin v Daly, 205 AD2d 870 [1994]). Since the remainingcauses of action insofar as asserted against the respondent were dependent on the plaintiff's claimof adverse possession, they were properly dismissed as well.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Balkin, Leventhal andLott, JJ., concur.