| Walsh v Ellis |
| 2009 NY Slip Op 05960 [64 AD3d 702] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Gerald Walsh, Respondent, v John Jerome Ellis et al.,Defendants, and Ashraf Abdelaal, Also Known as Abdelaal Ashraf,Appellant. |
—[*1] James N. Cameron, P.C., Staten Island, N.Y., for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff acquired title to certain realproperty of the defendant Ashraf Abdelaal, also known as Abdelaal Ashraf, by adversepossession and acquired easements by prescription over two driveways that traverse the realproperty, the defendant Ashraf Abdelaal, also known as Abdelaal Ashraf, appeals from ajudgment of the Supreme Court, Richmond County (Pizzuto, J.H.O.), dated March 4, 2008,which, upon a decision of the same court dated January 7, 2008, made after a nonjury trial,declared that the plaintiff acquired title to the disputed parcel of real property by adversepossession and that the plaintiff acquired easements by prescription over the two driveways.
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofdeclaring that the plaintiff acquired title to the real property by adverse possession andsubstituting therefor a provision declaring that the plaintiff did not acquire title to the realproperty by adverse possession, and (2) by deleting the provision thereof declaring that theplaintiff acquired an easement by prescription over the rear driveway located on the northportion of the defendant's real property and substituting therefor a provision declaring that theplaintiff did not acquire an easement by prescription over that driveway; as so modified, thejudgment is affirmed, with costs to the defendant.
To claim title to real property by adverse possession, in accordance with the law in effect atthe time this action was commenced (see RPAPL former 522; cf. L 2008, ch 269,§ 5), the party seeking title must demonstrate that he or she usually cultivated, improved,or substantially enclosed the land (see Giannone v Trotwood Corp., 266 AD2d 430[1999]; see also Rowland v Crystal Bay Constr., 301 AD2d 585 [2003]). Additionally,the party must demonstrate, by clear and convincing evidence, the five common-law elements ofthe claim. "[F]irst, the possession must be hostile and under claim ofright; second, it must be actual; third, it must be open and notorious;fourth, it must be exclusive; and fifth, it must be continuous" (Belotti vBickhardt, 228 NY 296, 302 [1920]; MAG Assoc. v SDR Realty, 247 AD2d 516,517 [1998]) for the statutory period of 10 years (see Walling v Przybylo, 7 NY3d 228, 232 [2006]).[*2]
The real property in dispute is a vacant lot (hereinafterthe Lot), measuring approximately 30 feet by 123 feet, which lies directly to the east of theplaintiff's property (hereinafter the Walsh Property). The appellant purchased the Lot from theCity of New York at an auction in 2001 and acquired title to the Lot in March 2002.
The plaintiff commenced this action, inter alia, for a judgment declaring that he had acquiredtitle to the Lot by adverse possession and that he had acquired prescriptive easements over thetwo driveways that traverse the Lot. After a nonjury trial, the Supreme Court held that theplaintiff had acquired title to the Lot by adverse possession. The court also concluded that theplaintiff had acquired easements by prescription over both of the driveways that traverse the Lot.
Upon review of a determination rendered after a nonjury trial, this Court's authority "is asbroad as that of the trial court," and this Court may "render the judgment it finds warranted bythe facts, taking into account in a close case the fact that the trial judge had the advantage ofseeing the witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford,60 NY2d 492, 499 [1983] [internal quotation marks omitted]).
Here, the plaintiff failed to prove by clear and convincing evidence that the Lot was usuallycultivated or improved or substantially enclosed for the requisite 10-year period to give rise totitle by adverse possession (seeConklin-Penwell v Riverhead Lodge, No. 2044, B.P.O. Elks, 61 AD3d 916 [2009];Rowland v Crystal Bay Constr., 301 AD2d 585, 586 [2003]). The testimony presented attrial indicated that both the plaintiff and his brother, who previously owned the Walsh Property,had exclusively mowed the grass on the Lot. The plaintiff also testified that on unspecifiedoccasions in the past, he had cut down two rotting trees, planted two new trees, planted anunknown number of shrubs, and performed de minimis maintenance upon a chain link fence,which is approximately one foot high and runs along the side of the Lot bordering a roadway.This was insufficient to establish the usual cultivation and improvement or substantial enclosurenecessary to support an adverse possession claim (see Giannone v Trotwood Corp., 266AD2d 430, 431 [1999]; Manhattan School of Music v Solow, 175 AD2d 106, 108[1991]; compare Eller Media Co. v Bruckner Outdoor Signs, 299 AD2d 166 [2002];Birnbaum v Brody, 156 AD2d 408, 409 [1989]). Thus, the court erred in determiningthat the plaintiff had acquired the Lot by adverse possession.
However, we agree that the plaintiff established his entitlement to a prescriptive easementover the circular driveway that traverses the southern point of the Lot.
An easement by prescription is generally demonstrated by proof of the adverse, open andnotorious, continuous, and uninterrupted use of the subject property for the prescriptive period,which is 10 years (see 315 Main St.Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690 [2009]; Weir v Gibbs, 46 AD3d 1192,1193 [2007]; Frumkin v Chemtop, 251 AD2d 449 [1998]).
The plaintiff testified that he used the circular driveway traversing the Lot on a daily basis.This use manifested a sufficient degree of openness, notoriety, and continuity to give rise to aprescriptive easement (see Di Leo v Pecksto Holding Corp., 304 NY 505 [1952]; Rozenberg v Bacigalupo, 18 AD3d854, 855 [2005]).
In contrast, the plaintiff's use of the driveway that traversed the northern portion of the Lotwas admittedly occasional, and the evidence offered no clear indication of the frequency of useof this driveway by the plaintiff or his guests. This evidence was thus insufficient to establish, byclear and convincing evidence, that the plaintiff's use of the northern driveway was notorious andcontinuous (see Weir v Gibbs, 46 AD3d at 1193-1194). Thus, the court erred indeclaring that the plaintiff acquired a prescriptive easement over the northern driveway. Mastro,J.P., Eng, Belen and Hall, JJ., concur.