| Estate of Becker v Murtagh |
| 2010 NY Slip Op 06157 [75 AD3d 575] |
| July 20, 2010 |
| Appellate Division, Second Department |
| Estate of Robert E. Becker et al., Respondents, v Owen J.Murtagh et al., Appellants. |
—[*1] Margolin & Pierce, LLP, New York, N.Y. (Philip Pierce and Errol Margolin of counsel), forrespondents Estate of Robert E. Becker and Christopher K. O'Hara.
In an action, inter alia, for a judgment declaring that the plaintiff Estate of Robert E. Beckeracquired title to a certain strip of land and dock by adverse possession and that the plaintiffsChristopher K. O'Hara, Edward J. O'Hara, and Douglas C. Koelsch acquired an easement byprescription over that same strip of land and dock as well as over a certain area of beachfrontproperty, the defendants appeal from (1) an order of the Supreme Court, Suffolk County(Pastoressa, J.), dated July 7, 2009, which (a) denied their motion for summary judgment, ineffect, declaring that the plaintiffs had no rights in the disputed property and that the easementsrecorded by Robert E. Becker with the Suffolk County Clerk on May 19, 2005, were invalid andvoid; in effect, to compel the plaintiff Estate of Robert E. Becker to remove a certain dock andboardwalk from their property; and, in effect, to dismiss the complaint pursuant to CPLR 3126,and (b) granted the plaintiffs' cross motion for summary judgment declaring that the plaintiffEstate of Robert E. Becker established title by adverse possession to the disputed strip of landand dock and that the plaintiffs Christopher K. O'Hara, Edward J. O'Hara, and Douglas C.Koelsch established an easement by prescription over the disputed strip of land, dock, and areaof beachfront property, and to direct them to restore the boardwalk and dock in the disputed areato their condition at the time of a preliminary injunction issued by the Supreme Court on January4, 2006, and (2) a judgment of the same court dated September 14, 2009, which, upon the order,declared that the plaintiff Estate of Robert E. Becker established title by adverse possession tothe disputed strip of land and dock, declared that the plaintiffs Douglas C. Koelsch, ChristopherK. O'Hara, and Edward J. O'Hara established an easement by prescription over the disputed stripof land, dock, and area of beachfront property, declared that the easements recorded by Robert E.Becker with the Suffolk County Clerk on May 19, 2005, are valid and binding, directed them toremove all obstructions on the subject boardwalk and to restore the boardwalk and dock to theircondition at the time of the preliminary injunction issued on January 4, 2006, and failed to, ineffect, compel the plaintiff Estate of Robert E. Becker to remove the subject dock and boardwalkfrom their property. The notice of appeal from the order dated July 7, 2009, is deemed also to bea notice of appeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,[*2]
Ordered that the judgment is reversed, on the law, thedefendants' motion for summary judgment, in effect, declaring that the plaintiffs have no rightsin the disputed property and that the easements recorded by Robert E. Becker with the SuffolkCounty Clerk on May 19, 2005, were invalid and void, and, in effect, to compel the plaintiffEstate of Robert E. Becker to remove a certain dock and boardwalk from the defendants'property is granted, and the plaintiffs' cross motion for summary judgment declaring that theplaintiff Estate of Robert E. Becker established title by adverse possession to the disputed stripof land and dock and that the plaintiffs Christopher K. O'Hara, Edward J. O'Hara, and DouglasC. Koelsch established an easement by prescription over the disputed strip of land, dock,beachfront property, and to direct the defendants to restore the boardwalk and dock in thedisputed area to their condition at the time of a preliminary injunction issued by the SupremeCourt on January 4, 2006, is denied, the order dated July 7, 2009, is modified accordingly, and itis declared that the plaintiffs have no rights in the disputed property and that the easementsrecorded by Robert E. Becker with the Suffolk County Clerk on May 19, 2005, are invalid andvoid; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
This appeal involves a dispute over the ownership and use of a boardwalk, dock, and beachlocated on Oak Beach, Suffolk County. The plaintiff Estate of Robert E. Becker (hereinafter theBecker Estate) is the lessee of a beachfront lot designated as lot 29 on Oak Beach. Thedefendants are the lessees of a beachfront lot designated as lot 30 on Oak Beach, adjacent to lot29. The plaintiff Douglas C. Koelsch is the occupant of a lot designated as lot 15, locateddirectly north of lot 29. Lot 15 is not located on the beachfront. The plaintiffs ChristopherO'Hara and Edward O'Hara (hereinafter together the O'Haras) are the occupants of a lotdesignated as lot 14, located directly north of lot 30. Lot 14 is not located on the beachfront. Thehomes on all of the lots involved are privately owned, but the lots are owned by the Town ofBabylon, which leases the real property to the occupants pursuant to long-term leases.
In approximately 1965, Robert E. Becker (now deceased) constructed a boardwalk and dockbetween lot 29 (hereinafter the Becker lot) and lot 30. Robert E. Becker, in an affidavit, statedthat, at the time of the construction of the boardwalk and dock, he believed that those structureswere located on the Becker lot. The evidence shows that, beginning in 1965, Becker permittedseveral neighbors to freely use the boardwalk and dock, including Koelsch, the O'Haras, andtheir respective predecessors. The evidence, including the affidavits and deposition testimony oftwo of the plaintiffs, also shows that the defendants' predecessors, Alan Gordon and NancieGordon, freely used the dock and boardwalk after those facilities were built. The record alsoshows that since the early 1960s, Nancie Gordon permitted several neighbors, including theplaintiffs' predecessors, to use the beach on lot 30. Those persons used the boardwalk betweenlots 29 and 30 to access the beach on lot 30.
A 1984 survey showed that part of the boardwalk, and the entire dock, were located on lot30. After that time, Nancie Gordon continued to permit the plaintiffs to use the boardwalk anddock, as well as the beach on lot 30.
In 2004, Nancie Gordon sold her house on lot 30 to the defendants, and assigned herleasehold interest in that property to the defendants. The defendants declined to continue toallow the plaintiffs to use the boardwalk, dock, and the beach on lot 30, and this action ensued.The Becker Estate sought, inter alia, a judgment declaring that it had established title by adversepossession to the property on which the boardwalk and dock was located. Koelsch and theO'Haras, sought, inter alia, a judgment declaring that they had acquired a prescriptive easementfor the use of the boardwalk, dock, and beach.[*3]
On January 4, 2006, the Supreme Court preliminarilyenjoined the defendants from interfering with the plaintiffs' use of the subject boardwalk, dock,and beach. On May 19, 2006, Robert E. Becker recorded two easements with the Suffolk CountyClerk by which he purported to grant to Koelsch and the O'Haras the right to use the boardwalkand dock in order to access the beach on lot 30.
After several prior motions and a prolonged discovery dispute, in March 2009, thedefendants moved, inter alia, for summary judgment, in effect, declaring that the plaintiffs hadno interest in the property and that the recorded easements were invalid, and, in effect, to compelthe Becker Estate to remove the dock and boardwalk from their property. The plaintiffscross-moved for summary judgment, inter alia, declaring that the recorded easements were validand declaring their respective rights to the property. The Supreme Court erred in finding that theevidence established that the Becker Estate acquired title to the disputed part of the boardwalkand to the dock by adverse possession.
"The mere possession of land without any claim of right, no matter how long it may becontinued, gives no title" (Gerlach v Russo Realty Corp., 264 AD2d 756, 757 [1999][internal quotation marks omitted]). The evidence submitted to the Supreme Court, including thedeposition testimony and affidavits of two of the plaintiffs, established that the defendants andtheir predecessors freely used the boardwalk and dock during the period of time in which theBecker Estate asserts its adverse possession claim ripened into title. That evidence established,prima facie, that the use of the property by Robert E. Becker during the relevant time period wasneither hostile nor exclusive (seeKennelty-Cohen v Henry, 62 AD3d 664 [2009]; H.S. Farrell, Inc. v Formica Constr. Co., Inc., 41 AD3d 652[2007]; Hancock v Estate ofHancock, 15 AD3d 620 [2005]). In opposition, the Becker Estate failed to raise a triableissue of fact as to whether the possession by Robert E. Becker was hostile or exclusive (seeKennelty-Cohen v Henry, 62 AD3d at 665; Hancock v Estate of Hancock, 15 AD3dat 621). Therefore, the evidence established, prima facie, that the Becker Estate did not acquiretitle to the subject property by adverse possession (see Kennelty-Cohen v Henry, 62AD3d at 665; Hancock v Estate of Hancock, 15 AD3d at 621).
Furthermore, contrary to the plaintiffs' contention, they failed to establish, prima facie, thatthe doctrine of "practical location" of a boundary line was applicable, as there was no proof of aclear demarcation of a definite believed boundary line (see McMahon v Thornton, 69 AD3d 1157, 1160 [2010]; Nickerson v Genuine Hardwoods, 4AD3d 842, 843 [2004]; Riggs v Benning, 290 AD2d 716, 717-718 [2002];Hadix v Schmelzer, 186 AD2d 239 [1992]).
Therefore, the Supreme Court should have granted that branch of the defendants' motionwhich was for summary judgment, in effect, declaring that the Becker Estate had no rights to theproperty. In addition, as the Becker Estate had no rights in the property at the time that Robert E.Becker purported to grant easements to the other plaintiffs, the Supreme Court should havegranted that branch of the defendants' motion which was for a judgment declaring that thoserecorded easements were invalid and void.
Likewise, the Supreme Court should have granted that branch of the defendants' motionwhich was, in effect, to direct the Becker Estate to remove the dock and the part of theboardwalk that encroaches on their property (see RPAPL 501; 509 Sixth Ave. Corp.v New York City Tr. Auth., 15 NY2d 48, 52 [1964]; see also Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d61, 65 [2009]; O'Connell vGraves, 70 AD3d 1451, 1452-1453 [2010]).
The Supreme Court also erred in finding that Koelsch and the O'Haras acquired aprescriptive easement over the subject boardwalk and dock and to use a beach located on the lotoccupied by the defendants. The evidence submitted in support of the defendants' motion,including the deposition testimony and affidavits of two of the plaintiffs, shows that NancieGordon, the defendants' predecessor, permitted Koelsch and the O'Haras, and their predecessors,to use those facilities as a matter of neighborly accommodation. That evidence established, primafacie, that the plaintiffs' use of the property was not hostile to the defendants' interest (see Ryan v Posner, 68 AD3d 963,964-965 [2009]; 315 Main St.Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690, 691 [2009]; [*4]Duckworth v Ning Fun Chiu, 33 AD3d 583 [2006];see also McNeill v Shutts, 258 AD2d 695, 697 [1999]). In opposition to that prima facieshowing, Koelsch and the O'Haras failed to raise a triable issue of fact (see Ryan vPosner, 68 AD3d at 965; 315 Main St. Poughkeepsie, LLC v WA 319 Main, LLC,62 AD3d at 691). Therefore, the Supreme Court should have granted that branch of thedefendants' motion which was for summary judgment, in effect, declaring that Koelsch and theO'Haras have no rights to the subject property or facilities. In addition, the Supreme Courtshould have denied that branch of the plaintiffs' motion which was to direct the defendants torestore the subject boardwalk and dock to their condition at the time of the preliminaryinjunction, as the evidence established that the plaintiffs have no rights to the underlyingproperty.
In light of our determination, the issues raised with respect to that branch of the defendants'motion which was, in effect, to dismiss the complaint pursuant to CPLR 3126 have beenrendered academic. Skelos, J.P., Santucci, Dickerson and Leventhal, JJ., concur.