| Almeida v Wells |
| 2010 NY Slip Op 05712 [74 AD3d 1256] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Ines Almeida, Respondent, v Wendy Wells, Appellant etal., Defendant. |
—[*1] Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains, N.Y. (Lois N. Rosen andStuart Kahan of counsel), for respondent.
In an action, inter alia, for a judgment declaring that the plaintiff acquired title to certain realproperty by adverse possession, the defendant Wendy Wells appeals, as limited by her brief,from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered March5, 2009, as denied her motion for summary judgment declaring that the plaintiff did not acquirethe subject property by adverse possession and does not have an easement by prescription,implication, or necessity over the subject property, dismissing the fifth, sixth, seventh, and eighthcauses of action insofar as asserted against her, and on her ninth counterclaim, and to cancel anotice of pendency filed by the plaintiff in connection with the subject property, and grantedthose branches of the plaintiff's cross motion which were for summary judgment on the first,second, third and fourth causes of action declaring that the plaintiff acquired the subject realproperty by adverse possession and/or has an easement by prescription, implication, andnecessity over the subject property, and on the eighth cause of action permanently enjoining herfrom interfering with the plaintiff's rights in and to the subject property.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the motion of the defendant Wendy Wells which was for summary judgmentdeclaring that the plaintiff did not acquire the subject property by adverse possession, andsubstituting therefor a provision granting that branch of the motion, and (2) by deleting theprovisions thereof granting those branches of the plaintiff's cross motion which were forsummary judgment on the first, second, third, and fourth causes of action declaring that theplaintiff acquired the subject property by adverse possession and/or has an easement byprescription, implication, and necessity over the subject property, and on the eighth cause ofaction permanently enjoining the defendant Wendy Wells from interfering with her rights in andto the subject property, and substituting therefor provisions denying those branches of the crossmotion; as so modified, the order is affirmed insofar as appealed from, with costs to theappellant, and the matter is remitted to the Supreme Court, Westchester County, for the entry ofa judgment, inter alia, declaring that the plaintiff did not acquire the subject property by adversepossession.[*2]
The plaintiff and the defendant Wendy Wells ownneighboring parcels of real property on High Street in the Town of Yorktown. From 1955 to1991, the plaintiff's predecessors in interest used a portion of real property situated between thetwo subject parcels for parking. However, a portion of the property used by the plaintiff'spredecessors in interest included a "paper street," and part of Wells's lot. In May 2007 Wellsremoved a portion of the plaintiff's driveway and a retaining wall in the contested area.Thereafter, the plaintiff commenced this action against Wells, among others, for, inter alia, ajudgment declaring that she had acquired title to the contested real property by adversepossession, and/or that she had an easement by prescription, implication, or necessity over thatproperty, which included a portion of the "paper street" and Wells's lot. In an order enteredMarch 5, 2009, the Supreme Court, among others things, denied those branches of Wells'smotion which were for summary judgment declaring that the plaintiff did not acquire thecontested parcel by adverse possession and did not have an easement by prescription,implication, or necessity and dismissing the fifth, sixth, seventh, and eighth causes of action, andgranted those branches of the plaintiff's cross motion which were for summary judgment on thefirst, second, third, and fourth causes of action declaring that she had acquired those rights andinterests in the contested property, and on the eighth cause of action permanently enjoiningWells from interfering with those rights and interests. We modify.
"To claim title to real property by adverse possession, in accordance with the law in effect atthe time this action was commenced (see RPAPL former 522; cf. L 2008, ch 269,§ 5), the party seeking title must demonstrate that he or she usually cultivated, improved,or substantially enclosed the land" (Walsh v Ellis, 64 AD3d 702, 703 [2009]; seeGiannone v Trotwood Corp., 266 AD2d 430 [1999]; see also Rowland v Crystal BayConstr., 301 AD2d 585, 586 [2003]). In addition, the party claiming title must demonstrate,by clear and convincing evidence, satisfaction of the following five common-law elements of theclaim over the course of the applicable statutory period: (1) the possession must be hostile andunder a claim of right; (2) it must be actual; (3) it must be open and notorious; (4) it must beexclusive; and (5) it must be continuous (see Belotti v Bickhardt, 228 NY 296, 302[1920]; MAG Assoc. v SDR Realty, 247 AD2d 516, 517 [1998]). Where, as here,possession commenced prior to September 1, 1963, the requisite statutory period to establish aclaim of adverse possession is 15 years (see West Ctr. Cong. Church v Efstathiou, 215AD2d 753, 754 [1995]).
Here, in support of that branch of her motion which was for summary judgment declaringthat the plaintiff did not acquire title to the contested real property by adverse possession, Wellsdemonstrated, prima facie, her entitlement to judgment as a matter of law. Specifically, Wellsdemonstrated that the plaintiff's predecessors in interest had not "usually cultivated, improved, orsubstantially enclosed the land" upon which they parked their vehicle (cf. Walsh v Ellis,64 AD3d at 704-705; Dunkin Donuts of N.Y., Inc. v Mid-Valley Oil Co., Inc., 14 AD3d590, 592 [2005]; Manhattan School of Music v Solow, 175 AD2d 106, 108 [1991]). Inopposition to Wells's motion, the plaintiff failed to raise a triable issue of fact. Accordingly, theplaintiff also failed to establish her own entitlement to judgment as a matter of law on the firstcause of action declaring that she acquired the contested property by adverse possession. Thus,the Supreme Court should have granted that branch of Wells's motion which was for summaryjudgment declaring that the plaintiff did not acquire the contested parcel by adverse possession,and denied that branch of the plaintiff's cross motion which was for summary judgment declaringthat she did.
In addition, in support of that branch of her cross motion which was for summary judgmenton the second cause of action declaring that she has an easement by prescription over thecontested real property, the plaintiff failed to meet her prima facie burden of establishing herentitlement to judgment as a matter of law. An easement by prescription is generallydemonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use ofthe subject property for the prescriptive period (see 315 Main St. Poughkeepsie, LLC v WA319 Main, LLC, 62 AD3d 690 [2009]; Weir v Gibbs, 46 AD3d 1192, 1193 [2007];Frumkin v Chemtop, 251 AD2d 449 [1998]). "Where the use has been shown by clearand convincing evidence to be open, notorious, continuous, and undisputed, it is presumed thatthe use was hostile, and the burden shifts to the opponent of the alleged prescriptive easement toshow that the use was permissive" (315 Main St. Poughkeepsie, LLC v WA 319 Main,LLC, 62 AD3d at 691). Unlike a claim sounding in adverse possession, a party seeking toacquire a right by prescription need not demonstrate that use of the property was exclusive(see Levy v Morgan, 31 AD3d 857 [2006]). Here, the plaintiff's submissions, includingthe deposition transcript of a predecessor in interest and an affidavit and survey from a registeredland surveyor, did not demonstrate, prima facie, which portions of the contested area the plaintiffallegedly acquired by a prescriptive easement. As a result, the Supreme Court erred in grantingthat branch of the plaintiff's cross motion which was for summary judgment on the second causeof action.
Furthermore, the plaintiff failed to submit evidence sufficient to establish, prima facie, herentitlement to judgment as a matter of law on the third cause of action declaring that she has aneasement by implication (see MacVicar v Aerodrome Dev. Corp., 7 AD3d 762, 763[2004]) and on the fourth cause declaring that she has an easement by necessity (see Simonev Heidelberg, 9 NY3d 177, 179 [2007]) over the contested property. Although the plaintiffsubmitted evidence suggesting that recognition of the various easements was required for ingressto and egress from portions of the "paper street" and Wells's lot, those submissions reveal theexistence of triable issues of fact as to which specific portions of that real property the easementsshould apply.
As a result of the plaintiff's failure to meet her prima facie burden in connection with thesecond, third, and fourth causes of action, the sufficiency of Wells's opposition papers need notbe addressed (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
In view of the foregoing, the Supreme Court also erred in granting that branch of theplaintiff's cross motion which was for summary judgment on the eighth cause of actionpermanently enjoining Wells from interfering with the plaintiff's alleged rights of ingress to andegress from her property over Wells's lot.
Wells' remaining contentions are without merit or need not be addressed in light of ourdetermination. Skelos, J.P., Angiolillo, Leventhal and Roman, JJ., concur.