| BTJ Realty, Inc. v Caradonna |
| 2009 NY Slip Op 06308 [65 AD3d 657] |
| August 25, 2009 |
| Appellate Division, Second Department |
| BTJ Realty, Inc., et al., Appellants, v Joseph Caradonna etal., Respondents, et al., Defendants. |
—[*1] Perry Dean Freedman, White Plains, N.Y., for respondent Joseph Caradonna. Pollock & Maguire, LLP, White Plains, N.Y. (Lee A. Pollack of counsel), for respondentIsaac Kotlowicz.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claimsto real property, the plaintiffs appeal (1) from so much of an order of the Supreme Court,Westchester County (Colabella, J.), entered August 3, 2007, as granted those branches of themotion of the defendant Isaac Kotlowicz and the cross motion of the defendant JosephCaradonna which were, in effect, for summary judgment declaring that the plaintiffs did notacquire title, by adverse possession, of property located on certain portions of the paper streetNepperhan Avenue where that street abuts properties owned by the defendants JosephCaradonna and Corporate Car Real Estate, Inc., and (2), as limited by their brief, from so muchof an order of the same court entered February 20, 2008, as, upon reargument, granted thatbranch of the motion of the defendant Isaac Kotlowicz which was, in effect, for summaryjudgment declaring that he has a right of ingress and egress over the subject portions of the paperstreets known as Nepperhan Avenue and Buckout Street.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs, and thematter is remitted to the Supreme Court, Westchester County, for the entry of a judgmentdeclaring that the plaintiffs did not acquire title, by adverse possession, to the property locatedon certain portions of the paper street Nepperhan Avenue where that street abuts propertiesowned by the defendants Joseph Caradonna and Corporate Car Real Estate, Inc., and that thedefendant Isaac Kotlowicz had a right of ingress and egress over the subject portions of the paperstreets known as Nepperhan Avenue and Buckout Street.
To claim title to real property by adverse possession on a claim not based upon a writteninstrument, in accordance with the law in effect at the time this action was commenced (seeRPAPL former 522 [1], [2]; cf. L 2008, ch 269, § 5; Walsh v Ellis, 64 AD3d 702[2009]), the party seeking title must show that the parcel was either "usually cultivated orimproved" or[*2]"protected by a substantial inclosure" (RPAPLformer 522 [1], [2]). In addition, a party must satisfy the common-law requirement ofdemonstrating that the possession of the parcel was hostile, under claim of right, open andnotorious, exclusive, and continuous for a period of 10 years or more (see Walling v Przybylo, 7 NY3d228, 232 [2006]; East HamptonLivestock Corp. v Fleming, 53 AD3d 641 [2008]; Oistacher v Rosenblatt, 220AD2d 493, 494 [1995]).
The defendants Joseph Caradonna and Isaac Kotlowicz established their prima facieentitlement to judgment as a matter of law by showing that the plaintiffs did not meet thestatutory or common-law requirements to obtain title to the disputed property by adversepossession. In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Perfito v Einhorn, 62 AD3d 846, 848 [2009]; Rowland vCrystal Bay Constr., 301 AD2d 585 [2003]; Giannone v Trotwood Corp., 266 AD2d430 [1999]).
The plaintiffs' contention that they obtained an easement by prescription for storing vehiclesand equipment over that portion of the paper street Nepperhan Avenue where that street abutsthe real property owned by Caradonna was not raised before the Supreme Court and, therefore, isnot properly before this Court on appeal (see Best Ct. Reporting Serv. v MGM Ct. ReportingServ., 248 AD2d 499 [1998]; Robinson v Donald C. Swanson, Inc., 205 AD2d 678[1994]; Modica v Zergebel, 140 AD2d 414, 415 [1988]).
Moreover, contrary to the plaintiffs' contentions, Kotlowicz neither abandoned his easementover the paper streets at issue nor lost the easement by the plaintiffs' alleged adverse possession.Despite the plaintiffs' seemingly exhaustive recitation of the history of the parcels at issue here,there is no indication in the record that the easement was "extinguished . . . by theunited action of all lot owners for whose benefit the easement was created" (Guardino vColangelo, 262 AD2d 777, 779 [1999]; see Lodol v Arbus, 46 AD3d 765, 766 [2007]). Additionally, asthis is the first time that Kotlowicz has sought to enforce his right to the use of the subjecteasement, the plaintiffs could not have previously extinguished the easement by adversepossession (see Will v Gates, 254 AD2d 275, 276 [1998]; Fischer v Liebman,137 AD2d 485, 488 [1988]; Castle Assoc. v Schwartz, 63 AD2d 481, 490 [1978]).Accordingly, the court properly, upon reargument, granted that branch of Kotlowicz's motionwhich was, in effect, for summary judgment declaring that Kotlowicz has a right of ingress andegress over the subject portions of paper streets known as Nepperhan Avenue and BuckoutStreet.
Since this is a declaratory judgment action, we remit the matter to the Supreme Court,Westchester County, for the entry of a judgment declaring that the plaintiffs did not acquire title,by adverse possession, to the property located on the paper street Nepperhan Avenue where thatstreet abuts properties owned by Caradonna and Corporate Car Real Estate, Inc., and that thedefendant Isaac Kotlowicz has a right of ingress and egress over the subject portions of the paperstreets known as Nepperhan Avenue and Buckout Street (see Lanza v Wagner, 11 NY2d317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901[1962]). Spolzino, J.P., Dillon, Florio and Angiolillo, JJ., concur.