| D'Argenio v Ashland Bldg., LLC |
| 2010 NY Slip Op 08058 [78 AD3d 758] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Dominick D'Argenio III et al., Appellants, v AshlandBuilding, LLC, Respondent. |
—[*1] John Z. Marangos, Staten Island, N.Y., for respondent.
In an action pursuant to RPAPL article 15 to compel the determination of claims to realproperty, the plaintiffs appeal from (1) an order of the Supreme Court, Richmond County (Fusco,J.), dated September 4, 2009, which denied their motion to reopen the trial and introduce rebuttaltestimony, and (2) a judgment of the same court dated December 10, 2009, which, upon adecision of the same court dated November 10, 2009, made after a nonjury trial, is in favor of thedefendant and against them on the cause of action alleging adverse possession, directing them toremove an encroaching fence from the subject real property.
Ordered that the appeal from the order dated September 4, 2009, is dismissed; and it isfurther,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the order dated September 4, 2009, must be dismissed because the right ofdirect appeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order datedSeptember 4, 2009, are brought up for review and have been considered on the appeal from thejudgment (CPLR 5501 [a] [1]).
In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority isas broad as that of the trial court and includes the power to render the judgment it finds warrantedby the facts, bearing in mind that due regard must be given to the decision of a trial judge whowas in the position to assess the evidence and the credibility of witnesses (see Golding v Gottesman, 41 AD3d430 [2007]; Tornheim v Kohn,31 AD3d 748 [2006]).
Here, the trial court did not err in finding that the plaintiffs had failed to establish the [*2]elements of adverse possession. The plaintiffs failed to demonstratethat their use of the subject premises was hostile and under a claim of right, and continuous for10 years. The trial court found that the plaintiffs were made aware during the statutory 10-yearperiod that the defendant owned the subject premises. An awareness that others own the propertywithin the statutory 10-year period will defeat any claim of right (see Beyer v Patierno, 29 AD3d613 [2006]; Morales v Riley,28 AD3d 623 [2006]; Oak Ponds v Willumsen, 295 AD2d 587 [2002]).Furthermore, the record shows that the use was permissive. Accordingly, the trial court'sdetermination was supported by the record and we find no reason to disturb it.
The plaintiffs' remaining contention is without merit. Fisher, J.P., Dillon, Florio and Lott, JJ.,concur.