| Skyview Motel, LLC v Wald |
| 2011 NY Slip Op 02375 [82 AD3d 1081] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Skyview Motel, LLC, Respondent, v Stuart Wald,Appellant. |
—[*1] Wasser & Russ, LLP, New York, N.Y. (Douglas F. Wasser and Isaac Alony of counsel), forrespondent.
In an action, inter alia, to recover damages for trespass and private nuisance, the defendantappeals from a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated May 8,2009, which, upon an order of the same court dated November 5, 2008, granting the plaintiff'smotion for summary judgment, directed him to, among other things, remove all encroachmentsfrom the subject real property, granted the plaintiff a permanent injunction, and dismissed hisaffirmative defenses and counterclaims alleging ownership of the subject real property by adversepossession.
Ordered that the judgment is affirmed, with costs.
This case arises out of a dispute as to the ownership of certain real property located inYonkers, New York (hereinafter the disputed property). The plaintiff, which holds the deed andtitle to the disputed property, commenced this action seeking, inter alia, to recover damages fortrespass and private nuisance, and to enjoin the defendant from using, dumping, or storingvehicles, machinery, and debris on the disputed property. The defendant counterclaimed,asserting that he possessed superior title to the disputed property by way of adverse possession.After discovery, the Supreme Court granted the plaintiff's motion for summary judgment, andentered a judgment in favor of the plaintiff and against the defendant. The defendant appeals. Weaffirm.
A party seeking to obtain title by adverse possession must prove by clear and convincingevidence the following common-law requirements of adverse possession: that (1) the possessionwas hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it wasexclusive; and (5) it was continuous for the statutory period of 10 years (see BTJ Realty, Inc. v Caradonna, 65AD3d 657 [2009]; Goldschmidt vFord St., LLC, 58 AD3d 803, 804 [2009]). Additionally, where, as here, the adversepossession is not founded upon a written instrument, the possessor must also establish, inaccordance with the law in effect at the time this action was commenced, that the disputedproperty was either "usually cultivated or improved" or "protected by a substantial inclosure"(RPAPL former 522; see BTJ Realty,Inc. v Caradonna, 65 AD3d 657 [2009]; Goldschmidt v Ford St., LLC, 58 AD3dat 805).[*2]
On its motion for summary judgment, the plaintiffsubmitted the deed to the disputed property, establishing, prima facie, that it was the recordowner. The plaintiff also submitted evidence that the defendant was encroaching upon thedisputed property. In opposition, the defendant failed to raise a triable issue of fact as to whetherhe had obtained title to the disputed property by adverse possession, as he failed to demonstratethat he cultivated or improved it or that it was substantially enclosed (see Almeida v Wells, 74 AD3d1256 [2010]; Rowland v Crystal Bay Constr., 301 AD2d 585 [2003]).
The defendant's remaining contention is without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment, and thereupon entered judgment in favor of the plaintiff. Dillon, J.P., Dickerson, Halland Roman, JJ., concur.