| Gourdine v Village of Ossining |
| 2010 NY Slip Op 02920 [72 AD3d 643] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Norman Michael Gourdine, as Executor of Harry Gourdine,Deceased, Appellant, v Village of Ossining et al.,Respondents. |
—[*1] Zarin & Steinmetz, White Plains, N.Y. (Michael D. Zarin and Susan H. Sarch of counsel),for respondents Village of Ossining, Mayor of the Village of Ossining, and Village of OssiningBoard of Trustees. DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Michael J.Schwarz of counsel), for respondents Cappelli Enterprises, Inc., Ginsburg Development Corp.,and Harbor Square, LLC.
In an action pursuant to RPAPL article 15 to determine claims to real property, the plaintiffappeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), enteredOctober 19, 2007, which granted the separate motions of the defendants Village of Ossining,Mayor of the Village of Ossining, and Village of Ossining Board of Trustees and the defendantsCappelli Enterprises, Inc., Ginsburg Development Corp., and Harbor Square, LLC, for summaryjudgment dismissing the complaint insofar as asserted against each of them and denied his crossmotion for summary judgment on the complaint.
Ordered that the order is affirmed, with one bill of costs.
A party seeking to obtain title to real property by adverse possession on a claim not basedupon a written instrument, in accordance with the law in effect at the time this action wascommenced (see RPAPL former 522; cf. L 2008, ch 269, § 5, as amended;Walsh v Ellis, 64 AD3d 702,703-704 [2009]), "must show that the parcel was either 'usually cultivated or improved' or'protected by a substantial inclosure' " (BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658 [2009], quotingRPAPL former 522 [1], [2]). Additionally, the party must satisfy the common-law requirementof demonstrating, by clear and convincing evidence, that the possession of the parcel was "(1)hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5)continuous for the required period" (Walling v Przybylo, 7 NY3d 228, 232 [2006]; see Chion v Radziul, 62 AD3d931, 932 [2009]; Goldschmidt vFord St., LLC, 58 AD3d 803, 804 [2009]; Seisser v Eglin, 7 AD3d 505, 506 [2004]).
Here, all of the defendants established their prima facie entitlement to judgment as a matterof law by showing that the plaintiff's possession of the parcel was not hostile and under claim ofright, or exclusive. Moreover, the defendants Cappelli Enterprises, Inc., Ginsburg DevelopmentCorp., and Harbor Square, LLC, established their prima facie entitlement to judgment [*2]as a matter of law by demonstrating that they claimed no right, title,or interest in the subject property (see McGahey v Topping, 255 AD2d 562, 563 [1998];Berman v Golden, 131 AD2d 416, 418 [1987]). In opposition, the plaintiff failed to raisea triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Accordingly, the Supreme Court properly granted the defendants' respective motions forsummary judgment dismissing the complaint, and denied the plaintiff's cross motion forsummary judgment on the complaint. Mastro, J.P., Skelos, Eng and Roman, JJ., concur.