| Merget v Westbury Props., LLC |
| 2009 NY Slip Op 06517 [65 AD3d 1102] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Barbara Merget et al., Appellants, v Westbury Properties,LLC, et al., Respondents. |
—[*1] Jaspan Schlesinger Hoffman, LLP, Garden City, N.Y. (Lisa A. Cairo of counsel), forrespondents.
In an action pursuant to RPAPL article 15 for a judgment declaring that the plaintiffs are theowners of certain real property by adverse possession, the plaintiffs appeal from a judgment ofthe Supreme Court, Nassau County (McCormack, J.), dated April 23, 2008, which, after anonjury trial, and upon a decision of the same court entered September 7, 2007, is in favor of thedefendants and against them, dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, and it is declared that theplaintiffs are the owners of the subject property by adverse possession.
The disputed property is an undeveloped parcel of land in a residential area of Wantagh,Long Island, designated on the Nassau County Land and Tax Map as section 56, block 411, lot410. The parcel is a "flag lot," meaning that it is accessible only through a long strip of land witha narrow, 15-foot frontage on the main road. The plaintiff Barbara Merget and the plaintiffsJames Haring and Linda Haring own property bordering either side of the lot. In 2006, theycommenced this action against the titled owner of the disputed lot, Westbury Properties, LLC(hereinafter Westbury Properties), and a prospective buyer of the property, Antonio Fanizzi,claiming ownership by adverse possession. Merget claimed ownership of the pole portion of theflag lot and the Harings claimed ownership of the flag portion. The plaintiffs alleged that for therequisite 10-year period they, among other things, cleared the property of debris, planted treesand shrubs, maintained the lawn and used it as part of their yards and to park their cars.
More specifically, with respect to the parties' use of the property, Megret testified at trial thatin or around 1976, when the Town resurfaced the street and installed sewers and curbs, theTown, at her request, also extended the curb cut onto the subject property so that the Mergetscould continue using it to park their cars. Merget further testified that she undertook to have thesubject property filled in and seeded, and eventually installed a sprinkler system on the grassyportion. She also stated that she has been paying a landscaper to mow the lawn for, at least, thelast 10 years and that the landscaper also maintains the shrubs which were planted on the lot atleast 20 years ago. Finally, Megret stated that in or around 1999, she paved the portion of theproperty which her family [*2]was using to park their cars andextended their driveway to include that section.
James Haring testified that in 1992, he "hired somebody to clean [the disputed property] up"and "immediately put about six yards of clean fill in, raked it out . . . seeded it, and. . . put up a couple of fences in the back on the south end of the yard [and] a coupleof pieces of stockade." He "hired a gardener to take care of it [and] to keep it neat." Haringfurther testified that in 1992 he had installed a "parking cutout" on the property for an additionalcar. He stated that from the time he purchased his home, the defendant never cleared the subjectproperty, never made any physical improvements to it, and never prevented Haring fromchanging or improving the property.
At the conclusion of the nonjury trial, the Supreme Court rendered a verdict in favor of thedefendants dismissing the complaint. The court determined, inter alia, that the plaintiffs hadfailed to establish that their possession was hostile and under claim of right. We reverse.
In reviewing a determination of the trial court after a nonjury trial, "[t]he power of theAppellate Division . . . is as broad as that of the trial court . . . and. . . it may render the judgment it finds warranted by the facts, taking into accountin a close case 'the fact that the trial judge had the advantage of seeing the witnesses' "(Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983], quoting York Mtge. Corp. v Clotar Constr. Corp., 254 NY 128, 133-134 [1930]).Here, the evidence supports the Supreme Court's conclusion that, under the law existing at thetime this claim was filed, the plaintiffs established by clear and convincing evidence that theirpossession of the disputed property was "usually cultivated or improved" (RPAPL former 522[1]), actual, open and notorious, and that it was exclusive and continuous for the requisitestatutory period (see Walling vPrzybylo, 7 NY3d 228, 232 [2006]).
However, the Supreme Court erred in concluding that the plaintiffs failed to establish thattheir possession was hostile and under claim of right. "[A]n inference of hostile possession or aclaim of right will be drawn [where as here] the other elements of adverse possession areestablished, unless, prior to the vesting of title, the party in possession has admitted that titlebelongs to another" (Gerlach v Russo Realty Corp., 264 AD2d 756, 757 [1999]).Moreover, under the law existing at the time this claim was filed, in the absence of an overtacknowledgment during the statutory period that ownership rested with another party, actualknowledge of the true owner did not destroy the element of claim of right (see Walling vPryzbolo, 7 NY3d at 232; cf. RPAPL 501 [3], as amended by L 2008, ch 269 [effJuly 7, 2008]).
The plaintiff James Haring testified that he contacted the Town of Hempstead numeroustimes between 1982 and 1992 to ascertain the true owners of the property in question so as tohave it cleared of debris. Although in calling the town, Haring admitted that he was not the titledowner, no evidence exists that he acknowledged during the statutory 10-year period thatownership of the property rested with another person (see Van Gorder v Masterplanned, Inc.,78 NY2d 1106, 1107-1108 [1991]; Blumenfeld v DeLuca, 24 AD3d 405, 405-406 [2005]). Withrespect to the plaintiff Barbara Merget, she testified that she was aware the property belonged toa third party. However, no evidence exists that she overtly acknowledged during the statutoryperiod that ownership rested with another person. Therefore, contrary to the conclusion of ourdissenting colleague, a claim of right may be inferred under the facts and circumstances of thiscase (cf., Beyer v Patierno, 29AD3d 613 [2006]).
We also disagree with the Supreme Court's conclusion that actual awareness by WestburyProperties of the plaintiffs' infringement was necessary to prove its acquiescence. Under the lawas it existed at the time this claim was filed, the plaintiffs' use of the property in question wassufficiently open and notorious so as to call upon Westbury Properties to assert its legal title(see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160 [1996]; Monnot vMurphy, 207 NY 240, 245 [1913]; Ward v Warren, 82 NY 265, 268 [1880]). Skelos,J.P., Santucci and Balkin, JJ., concur.
[*3]Fisher, J., dissents, and votes to affirm the judgmentappealed from, with the following memorandum: I respectfully dissent. An essential element ofadverse possession is possession under a claim of right (see Ray v Beacon Hudson Mtn.Corp., 88 NY2d 154, 159 [1996]). In Walling v Przybylo (7 NY3d 228 [2006]), the Court of Appealsheld, in effect, that even a claim of right made in bad faith is sufficient for purposes of adversepossession provided that, during the statutory period, the possessors do not betray their bad faithby acknowledging what they know to be the true ownership of the property (7 NY3d at 233).Here, however, not only did the plaintiffs know that the subject property was not theirs, but theynever claimed, either mistakenly or with an intent to deceive, that it was. Consequently, this casedoes not involve a bad faith claim of right; it involves no claim of right at all. Moreover, mereoccupancy for an extended period of years, even when coupled with open conduct consistentwith ownership, does not ripen into ownership by adverse possession absent an initial claim ofright (see Keena v Hudmor Corp.,37 AD3d 172, 174 [2007]; Allthe Way E. Fourth St. Block Assn. v Ryan-NENA Community Health Ctr., 30 AD3d182 [2006]). Clearly, then, an essential element of adverse possession—possessionunder a claim of right—is absent here (see Keena v Hudmor Corp., 37 AD3d at174). Additionally, in my view, the plaintiffs' express acknowledgments that they neverpossessed the land under any claim of right makes the majority's presumption of that essentialelement unjustifiable (cf. Soukup v Nardone, 212 AD2d 772, 774-775 [1995]). Contraryto the majority's conclusion, it is simply untenable to hold that these plaintiffs, who neverclaimed to own the land, may now be held to own it merely because they had the free enjoymentand use of it for the statutory period while the record owner of the property continued to paytaxes on it. To reward the plaintiffs with title would be to encourage knowing trespass in thehope, not only that it will go unpunished, but that it will ultimately be rewarded with actualownership. The Legislature apparently agrees, having amended the law to define "claim of right"as "a reasonable basis for the belief that the property belongs to the adverse possessor orproperty owner, as the case may be" (RPAPL 501 [3] [L 2008, ch 269, § 1, as amended]).
Finally, the fact that the true owner did not visit the property does not, in my view, compel adifferent result, as it means only that the plaintiffs were able to continue to enjoy the land thatthey knew they did not own—and never claimed to own—without ever having theirtrespass challenged.