| Asher v Borenstein |
| 2010 NY Slip Op 06611 [76 AD3d 984] |
| September 21, 2010 |
| Appellate Division, Second Department |
| Gail Asher, Respondent, v Maurice Borenstein et al.,Appellants. |
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In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claimsto certain real property, and for a judgment declaring that the plaintiff is the owner of the subjectproperty by adverse possession, the defendants appeal from an order of the Supreme Court,Nassau County (Phelan, J.), dated July 27, 2009, which granted the plaintiff's motion forsummary judgment declaring that the plaintiff is the owner of the subject property by adversepossession, and denied their cross motion for summary judgment declaring them to be the ownersof the subject property.
Ordered that the order is affirmed, with costs.
The plaintiff and the defendants are neighbors in Lido Beach, New York. The plaintiff andher husband purchased their property in 1983. At the time, there was a fence separating what theplaintiff believed to be the western border of her property from the neighboring propertysubsequently purchased in 1996 by the defendants. In 1986, the plaintiff replaced the preexistingfence with a new one. In September 2005 the plaintiff and her husband transferred title to theirproperty solely to the plaintiff.
At the time that the defendants purchased their property in 1996, they received a survey oftheir property which revealed that the subject fence was situated three feet within their property.When deposed, the defendant Maurice Borenstein stated that in 1996, he approached theplaintiff's husband with a copy of the defendants' survey, measured out the actual points, andrequested a copy of the survey of the plaintiff's property. He recalled being advised that theplaintiff never had a copy of a survey of her property. Borenstein then recounted that attempts toget another survey performed in 1996 failed and, since the defendants had just bought theirhouse, they decided "it was well enough to leave everything alone at the time." Borenstein alsorecollected having another conversation about the subject fence with the plaintiff's husband in2007, during which Borenstein requested that the plaintiff move the subject fence to the actualproperty line and the plaintiff's husband responded that the defendants could not touch theplaintiff's property.
In March 2008 the plaintiff commenced this action pursuant to RPAPL article 15 to quiettitle to the disputed section of land. In an affidavit submitted in support of her motion, theplaintiff maintained that, in addition to the fence enclosing the subject portion of land, she also[*2]installed a wooden walkway on that parcel, planted trees andshrubs which were maintained by herself and her gardener, and located the pump, filter, andheating equipment for her pool on that strip of land.
In July 2008, Real Property Actions and Proceedings Law §§ 501, 522 and 543were amended. The amendments applied solely to those actions commenced after July 7, 2008.Since the plaintiff commenced this action prior to July 7, 2008, those amendments are notapplicable to this action.
Under the law as it existed at the time that the plaintiff filed her lawsuit, where a claim ofadverse possession was not based upon a written document, the plaintiff had to demonstrate thatshe "usually cultivated, improved, or substantially enclosed the land" (Walsh v Ellis, 64 AD3d 702, 703[2009]; see RPAPL former 522). Moreover, the plaintiff had to establish that herpossession of the disputed parcel was "(1) hostile and under claim of right; (2) actual; (3) openand notorious; (4) exclusive; and (5) continuous for the required period" (Walling v Przybylo, 7 NY3d 228,232 [2006]; see Walsh v Ellis, 64AD3d 702 [2009]). We agree with the Supreme Court that the plaintiff satisfied theserequirements.
Here, the defendants admitted that the fence between the two properties encroachedapproximately three feet onto their property and stood in the same location from the time theypurchased their property in 1996 until the plaintiff brought suit, and that they were aware that thefence was not on the true property line when they took possession of their property. Nevertheless,from 1996 through 2008, the defendants took no action to eject the plaintiff. Accordingly, thedefendants have conceded, through their admissions and their actions, that the plaintiffcontinually possessed the property for the 10-year statutory period (see Walling vPrzybylo, 7 NY3d at 232; CPLR 212 [a]).
The law as it existed at the time that the plaintiff filed her lawsuit made it clear that even"actual knowledge that another person is the title owner does not, in and of itself, defeat a claimof right by an adverse possessor" (Walling v Przybylo, 7 NY3d at 230; see Merget v Westbury Props., LLC, 65AD3d 1102, 1105 [2009]). Instead, "[c]onduct will prevail over knowledge, particularlywhen the true owners have acquiesced in the exercise of ownership rights by the adversepossessors" (Walling v Przybylo, 7 NY3d at 232-233; see Hall v Sinclaire, 35 AD3d 660, 663 [2006]). Accordingly, thequestion of whether the plaintiff was aware that her fence encroached upon the defendants'property is immaterial to her proof of the element of hostility in this matter.
For actions commenced prior to July 7, 2008, "[t]he type of cultivation or improvementsufficient to satisfy the statute will vary with the character, condition, location and potential usesfor the property" (Birnbaum v Brody, 156 AD2d 408, 408 [1989]; see RPAPLformer 522 [1]). Here, the plaintiff's cultivation and improvement of the disputed parcel,consisting of maintaining the grass, planting shrubs, and installing a walkway, was consistentwith the use to which a " 'thrifty owner[ ]' " would put comparable property (Ray v BeaconHudson Mtn. Corp., 88 NY2d 154, 160 [1996], quoting Ramapo Mfg. Co. v Mapes,216 NY 362, 373 [1915]; see RPAPL former 522 [1]; Birnbaum v Brody, 156AD2d at 408-409; see also 2 N. St.Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1394-1395 [2009]; but see Giannonev Trotwood Corp., 266 AD2d 430, 431 [1999]). In addition, the presence of the fence for thestatutory period constituted a substantial enclosure of the disputed parcel (see RPAPLformer 522 [2]; Morris v DeSantis, 178 AD2d 515, 516 [1991]; Birnbaum vBrody, 156 AD2d at 409).
Since the record demonstrates by clear and convincing evidence, under the law existing at thetime this action was commenced, that the plaintiff cultivated or improved the subject parcel,enclosed it with a fence, and satisfied the elements of adverse possession, and the defendants"acquiesce[d] . . . in the exercise of an obvious adverse or hostile ownershipthrough the statutory period" (Walling v Przybylo, 7 NY3d at 232 [internal quotationmarks omitted]), the Supreme Court properly determined that the plaintiff acquired title to thedisputed parcel via adverse possession.
In light of our determination, we need not reach the defendants' remaining [*3]contentions. Covello, J.P., Santucci, Balkin and Austin, JJ., concur.