| Kennelty-Cohen v Henry |
| 2009 NY Slip Op 03696 [62 AD3d 664] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Phil Kennelty-Cohen et al., Appellants, v Erin MarieGilliam Henry et al., Respondents. |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Susan E. Danziger of counsel), forrespondents.
In an action, inter alia, for a judgment declaring that the plaintiffs acquired title to a strip ofland by adverse possession or, alternatively, acquired an easement by prescription over the land,the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Nassau County (Palmieri, J.), dated January 15, 2008, as granted that branch of the defendants'cross motion which was for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter isremitted to the Supreme Court, Nassau County, for the entry of an appropriate declaratoryjudgment in favor of the defendants.
The plaintiffs allege that they have occupied and used a strip of land owned by thedefendants, that is situated between their house and the defendants' house, for 25 years. The stripof land is 3 feet, 6 inches wide, and 50 feet long. A fence was erected by the defendants'predecessor-in-title which allowed access to the strip by both the plaintiffs and the defendants.This action was commenced when the defendants removed the fence and erected a new fencesignificantly closer to the plaintiffs' house. The plaintiffs claim, inter alia, that they acquired titleto the strip by adverse possession or, alternatively, that they acquired an easement byprescription over the strip. The plaintiffs moved to compel the defendants to remove the newfence, and the defendants cross-moved, inter alia, for summary judgment. The Supreme Courtdenied the plaintiffs' motion and granted that branch of the defendants' cross motion which wasfor summary judgment.
The defendants established their entitlement to judgment as a matter of law with respect tothe cause of action seeking title to the strip by adverse possession by submitting evidence [*2]demonstrating that, in accordance with the law in effect at the timethis action was commenced (see RPAPL former 522; cf. L 2008, ch 269, §5), the plaintiffs had not cultivated, improved, or substantially enclosed the land (seeGiannone v Trotwood Corp., 266 AD2d 430 [1999]; see also Rowland v Crystal BayConstr., 301 AD2d 585 [2003]). The defendants further demonstrated that the plaintiffs didnot make exclusive use of the strip (seeMatter of Perry, 33 AD3d 704 [2006]), that the plaintiffs were not acting under a claimof right (see Beyer v Patierno, 29AD3d 613 [2006]), and that the plaintiffs' use of the strip was not hostile to that of thedefendants (see Hancock v Estate ofHancock, 15 AD3d 620 [2005]). The defendants also demonstrated that there was noprescriptive easement over the land by submitting evidence that the plaintiffs' use of the stripwas not hostile to that of the defendants (see Morales v Riley, 28 AD3d 623 [2006]; see alsoSusquehanna Realty Corp. v Barth, 108 AD2d 909 [1985]). The plaintiffs failed to raise atriable issue of fact in opposition to the defendants' prima facie showing. Accordingly, theSupreme Court properly granted that branch of the defendants' cross motion which was forsummary judgment.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiffs do notown the strip by adverse possession and did not acquire an easement by prescription over thestrip (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US74 [1962], cert denied 371 US 901 [1962]). Mastro, J.P., Skelos, Santucci and Hall, JJ.,concur. [See 2008 NY Slip Op 30163(U).]