| Chion v Radziul |
| 2009 NY Slip Op 04181 [62 AD3d 931] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Patricia Chion, Respondent, v Robert Radziul et al.,Appellants. |
—[*1] Gary N. Weintraub, Huntington, N.Y., for respondent.
In an action pursuant to RPAPL article 15 to compel the determination of claims to realproperty, the defendants appeal from an order of the Supreme Court, Suffolk County (R. Doyle,J.), dated October 30, 2007, which denied their motion for summary judgment dismissing thethird cause of action alleging adverse possession.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the third cause of action is granted.
The plaintiff commenced this action against the defendants to compel the determination ofclaims to real property, asserting three causes of action. In the first cause of action, the plaintiffseeks a declaration that a certain portion of the defendants' property was subject to an easementaffording the plaintiff a right-of-way for ingress and egress over the defendants' property. Thesecond cause of action seeks an injunction prohibiting the defendants from interfering with heruse of the purported easement. In the third cause of action, the plaintiff seeks a declaration thatshe acquired title to a portion of the purported easement through adverse possession. Thedefendants moved for summary judgment dismissing the third cause of action, contending, interalia, that the plaintiff's alleged possession was not exclusive. The Supreme Court denied themotion. We reverse.
To establish a claim for adverse possession, a claimant must prove by clear and convincingevidence that his or her possession was "(1) hostile and under claim of right; (2) actual; (3) openand notorious; (4) exclusive; and (5) continuous for the required period" (Walling v Przybylo, 7 NY3d 228,232 [2006]; see Board of Mgrs. of Glenat Great Kills Homeowners Assn. v NBM Realty Holding, LLC, 58 AD3d 778 [2009];DeRosa v DeRosa, 58 AD3d794 [2009], lv denied 12 NY3d 710 [2009]).
The defendants made a prima facie showing of entitlement to judgment as a matter of lawdismissing the adverse possession cause of action (see Larsen v Hanson, 58 AD3d 1003[2009]; Kimber Mfg., Inc. vHanzus, 56 AD3d 615, 617 [2008]; Palumbo v Heumann, 295 AD2d 935[2002]). The plaintiff and her husband both testified at their depositions that in the 1980s and1990s their neighbors used [*2]the gravel driveway portion of thepurported easement to transport plows, recreational vehicles, and boats to their respectiveproperties and that the plaintiff's deed explicitly creates "a nonexclusive right to pass and repasson foot or with vehicles over a right of way in common with others along the entire northerlyline" of their property. Thus, the defendants submitted evidence establishing that the plaintiff'suse of the gravel driveway portion of the purported right-of-way was not exclusive (seeShawangunk Conservancy v Fink, 305 AD2d 902, 903 [2003]; Longshore v Hoel PondLanding, 284 AD2d 815, 816 [2001]). Moreover, to the extent that the plaintiff's cause ofaction alleging adverse possession seeks to obtain title over property beyond the graveldriveway, the defendants established, as a matter of law, that the plaintiff can only claim that sheactually possessed that portion of the right-of-way consisting of the gravel driveway inasmuch asthe plaintiff testified that she and her husband only used that portion of the right-of-way andnever traversed the remaining portion of the defendants' property.
In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]). Therefore, the Supreme Court should have granted the defendants' motion forsummary judgment dismissing the third cause of action. Mastro, J.P., Covello, Balkin andAustin, JJ., concur.