| McMahon v Thornton |
| 2010 NY Slip Op 00426 [69 AD3d 1157] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Michael McMahon, Appellant, v John Thornton et al.,Respondents. |
—[*1] Coughlin & Gerhart, L.L.P., Binghamton (Anna Dmitriev of counsel), forrespondents.
Spain, J.P. Appeal from an order of the Supreme Court (Lebous, J.), entered July 8, 2008 inBroome County, which granted defendants' motion for, among other things, summary judgmentdismissing the complaint.
This action arises out of a property dispute between adjoining landowners in the Town ofConklin, Broome County. Defendants bought the property adjoining plaintiff's property in 2000.In 2004 or thereafter, plaintiff made improvements to his property, expanding the width of thedriveway and adding a garden. In preparation of constructing a shed on their property,defendants had their property surveyed in 2007 and discovered that plaintiff's driveway andgarden encroached upon their land. Defendants immediately informed plaintiffs of theencroachments and assert that plaintiff agreed to take remedial steps.
Shortly thereafter, defendants decided to remove several evergreen trees located near theborder between the parties' properties. After defendants removed the first tree, plaintiffcommenced this action seeking declaratory relief and damages and obtained a temporaryrestraining order preventing defendants from further removing trees. In his complaint, plaintiffasserted ownership of the trees and the land on which they are located by adverse possession, butprovided no factual allegations supporting that claim other than "[t]hat these trees are owned bythe [p]laintiff by adverse possession as he has resided at the present location for a period inexcess of twenty years and has always assumed that these trees were jointly owned by himselfand the next door neighbors."
Defendants answered and pleaded counterclaims based on the encroachment of plaintiff'sgarden and driveway. Upon a motion by defendants for summary judgment, Supreme Courtdenied, without prejudice, that portion of defendants' motion seeking summary judgmentdismissing plaintiff's adverse possession claim, but granted summary judgment to defendants ontheir counterclaim. The court thus directed plaintiff to remove the encroachments and restore theproper boundary at his own cost by a set deadline.
After plaintiff failed to remove the encroachments, defendants again moved for summaryjudgment seeking, among other things, counsel fees and to have plaintiff held in contempt ofcourt for failing to comply with the previous order. Supreme Court granted this motion,dismissing plaintiff's entire complaint, giving him 60 additional days to remove theencroachments and reserving decision on whether to award counsel fees following a hearing.Plaintiff appeals and we now affirm.
Summary judgment dismissing the adverse possession claim was properlygranted.[FN*]To establish ownership of property by adverse possession, the party claiming ownership isrequired to demonstrate by clear and convincing evidence that "the character of the possession is'hostile and under a claim of right, actual, open and notorious, exclusive and continuous' for thestatutory period of 10 years" (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159[1996] [citation omitted], quoting Brand v Prince, 35 NY2d 634, 636 [1974]; seeRPAPL 501). Here, defendants met their initial burden of demonstrating entitlement to judgmentas a matter of law by providing documentation establishing that plaintiff's alleged possessionwas neither of a nature or duration sufficient to sustain an adverse possession claim (seePatterson v Palmieri, 307 AD2d 668, 668 [2003], lv dismissed 1 NY3d 546 [2003]).Specifically, through a survey and the affidavits of their predecessors in interest and neighbors,defendants demonstrated that the pine trees were planted on their property and have beenmaintained by defendants or their predecessors in interest.
In response, plaintiff failed to raise a triable issue of fact. His focus on appeal is thatconflicting statements made by Kevin Dorin, a predecessor in interest of defendants, create anissue of fact on his adverse possession claim which makes summary judgment inappropriate.Specifically, plaintiff relies on a signed writing by Dorin wherein Dorin acknowledges thatplaintiff cared for the trees while Dorin owned the property now owned by defendants. However,even when we take this writing as fact, it is undisputed that Dorin owned the property for lessthan 10 years. Plaintiff has failed to allege any actions he took before or after Dorin's ownershipthat could sustain a claim of adverse possession. Indeed, his own affidavit alleges only that hebelieved he shared ownership in the trees and is insufficient, on its face, to demonstrateexclusivity or hostility. Simply put, plaintiff did not allege facts sufficient to demonstrateadverse possession and, thus, summary judgment was properly granted (see Ropitzky v Hungerford, 27 AD3d1031, 1032-1033 [2006]; Andersen v Mazza, 258 AD2d 726, 727-728 [1999];Winchell v Middleton, 226 AD2d 1009, 1010 [1996]).
Plaintiff's reliance, on appeal, on the theory of "boundary line by acquiescence," betterknown as the doctrine of practical location (see Robert v Shaul, 62 AD3d 1127, 1127-1128 [2009]), is equallyunavailing. It is settled law that " '[a] practical location of a boundary line and an acquiescencetherein for more than the statutory period is conclusive of the location of such boundary. . . although such line may not in fact be the true line according to the calls of thedeeds of the adjoining owners' " (Hazenv Hazen, 26 AD3d 696, 697-698 [2006], quoting Fisher v MacVean, 25 AD2d575 [1966]). However, application of the doctrine requires a clear demarcation of a boundaryline and proof that there is mutual acquiescence to the boundary by the parties such that it is"definitely and equally known, understood and settled" (Robert v Shaul, 62 AD3d at1128 [citations omitted]). Here, defendants submitted proof that former owners of their propertyand neighbors always assumed the trees were on defendants' property, and plaintiff has failed toallege facts that would support that the trees in question were mutually understood to reflect theboundary line and that such an understanding persisted for more than 10 years (see id. at1128; Riggs v Benning, 290 AD2d 716, 718 [2002]; cf. Hazen v Hazen, 26AD3d at 697).
We do not reach the issue of counsel fees. Supreme Court determined that it would hold ahearing and then determine what, if any, fees would be awarded and, thus, the issue is not ripefor our review (see City of Plattsburgh vBorner, 38 AD3d 1047, 1049-1050 [2007]). Indeed, although it is not readily apparentfrom this record that plaintiff's conduct in filing a complaint to resolve his alleged border disputerises to a level that would sustain a finding of frivolousness (see Race v Meyer, 219AD2d 67, 71-72 [1996]), the decision to award counsel fees is discretionary and must be madeafter considering the specific circumstances of the case (see 22 NYCRR 130-1.1 [c];Citibank [S.D.] v Jones, 272 AD2d 815, 817 [2000], lv denied 95 NY2d 764[2000]). Accordingly, we leave that matter to Supreme Court to determine whether and to whatextent counsel fees are appropriate by setting forth a clearly articulated decision identifying " 'theconduct on which the award is based and the reasons why the court found the conduct to befrivolous and the amount of the award to be appropriate' " (Household Bank Region I vStickles, 276 AD2d 940, 941 [2000], quoting Citibank [S.D.] v Coughlin, 274 AD2d658, 659 [2000], lv dismissed 95 NY2d 916 [2000]; see 22 NYCRR 130-1.2).
Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *: On appeal, plaintiff has notchallenged Supreme Court's order directing him to remove the driveway and gardenencroachments.