| Taillie v Rochester Gas & Elec. Corp. |
| 2009 NY Slip Op 09924 [68 AD3d 1808] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| Eugene Taillie et al., Plaintiffs, and Kevin Taillie, Appellant, vRochester Gas and Electric Corporation et al., Respondents. |
—[*1] Nixon Peabody LLP, Rochester (David L. Cook of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Wayne County (John B. Nesbitt, A.J.), enteredMay 23, 2008. The order granted defendants' motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking, inter alia, a determination that theyhad acquired title to a portion of defendants' property by adverse possession. Contrary to thecontention of Kevin Taillie (plaintiff), Supreme Court properly granted defendants' motion forsummary judgment dismissing the remaining cause of action, seeking title to the property byadverse possession. The court previously had granted those parts of a prior motion by defendantsthat sought summary judgment dismissing the remaining causes of action.
Where, as here, "the entry upon [the property] has been by permission or under some right orauthority derived from the owner[s], adverse possession does not commence until suchpermission or authority has been repudiated and renounced and the possessor[s] thereafter [have]assumed the attitude of hostility to any right in the real owner . . . , for if thefirst possession is by permission it is presumed to so continue until the contrary appears"(Hinkley v State of New York, 234 NY 309, 316-317 [1922]; see Gallea v HessRealty Corp., 128 AD2d 274, 275-276 [1987], affd 71 NY2d 999 [1988]; Ropitzky v Hungerford, 27 AD3d1031, 1031-1032 [2006]). Here, defendants met their burden on the motion by establishingas a matter of law that two of the five elements of adverse possession were not present, i.e., thatplaintiff's possession was not hostile and under a claim of right, nor did it continue for therequisite 10 years (see Walling vPrzybylo, 7 NY3d 228, 232 [2006]). We reject the contention of plaintiff that he raiseda triable issue of fact in opposition to the motion by submitting an affidavit in which he assertedthat he offered to purchase the property merely to avoid litigation and that he took other actionsdemonstrating that his possession of the property was hostile and under a claim of right. Themajority of those allegations concern actions that fall outside of the relevant 10-year period, andthe remaining allegations are merely " 'an attempt to avoid the consequences of [plaintiff's] priordeposition testimony by raising feigned issues of fact' " (Martin v Savage, 299 AD2d903, 904 [2002]; see Richter vCollier, 5 AD3d 1003 [2004]).
Plaintiff further contends that the motion should have been denied in view of the law of thecase doctrine, by virtue of the fact that the issues raised were decided when that part ofdefendants' prior motion with respect to the adverse possession cause of action was denied. Wereject that contention, particularly because defendants' instant motion was based in part onplaintiff's deposition testimony that was not elicited until after the entry of the prior order (see Hook v Village of Ellenville, 46AD3d 1318, 1319 n [2007]; cf.Estate of Sassa v Alfieri, 19 AD3d 361 [2005]). In addition, although we are cognizantof "the rule discouraging successive summary judgment motions" (Piazza v Frank L. Ciminelli Constr. Co.,Inc., 12 AD3d 1059, 1060 [2004]), we conclude that "there was sufficient cause fordefendant[s'] present motion" (Welch Foods v Wilson, 277 AD2d 882, 883 [2000]).
We have considered plaintiff's remaining contention and conclude that it is without merit.Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.