| Maya's Black Cr., LLC v Angelo Balbo Realty Corp. |
| 2011 NY Slip Op 02638 [82 AD3d 1175] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Maya's Black Creek, LLC, Doing Business as Arlington Bar andGrill, Appellant, v Angelo Balbo Realty Corp., Respondent. |
—[*1] Kleinman, Saltzman & Bolnick, P.C., New City, N.Y. (Caryn F. Blaustein of counsel), forrespondent.
In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that theplaintiff is the owner of certain real property by adverse possession, the plaintiff appeals from anorder of the Supreme Court, Dutchess County (Pagones, J.), dated December 16, 2009, whichdenied its motion for leave to amend the complaint to add causes of action for a judgmentdeclaring that it has an easement by prescription or an easement by necessity over the realproperty and granted the defendant's cross motion to dismiss the complaint pursuant to CPLR3211 (a) (7).
Ordered that the order is reversed, on the law, with costs, the plaintiff's motion for leave toamend the complaint to add causes of action for a judgment declaring that it has an easement byprescription or an easement by necessity over the subject real property is granted, and thedefendant's cross motion is denied.
Generally, leave to amend a pleading pursuant to CPLR 3025 (b) should be freely granted inthe absence of prejudice or surprise resulting directly from the delay in seeking leave (seeGiunta's Meat Farms, Inc. v Pina Constr. Corp., 80 AD3d 558 [2011]; Rosicki, Rosicki &Assoc., P.C. v Cochems, 59 AD3d 512, 514 [2009]), and unless the proposed amendment ispalpably insufficient or patently devoid of merit on its face (see Rosicki, Rosicki & Assoc.,P.C. v Cochems, 59 AD3d at 514; Lucido v Mancuso, 49 AD3d 220, 227 [2008]).Under the circumstances of this case, the Supreme Court should have granted the plaintiff leaveto amend the complaint by adding causes of action alleging an easement by prescription and aneasement by necessity, since the addition of these causes of action would not have resulted in anysurprise or prejudice to the defendant, and we cannot say that the proposed amendments arepalpably insufficient or patently devoid of merit (see Giunta's Meat Farms, Inc. v Pina Constr.Corp., 80 AD3d 558 [2011]).
Furthermore, the Supreme Court erred in granting the defendant's cross motion to dismiss thecomplaint for failure to state a cause of action. The plaintiff alleged that it acquired, by adversepossession, title to the subject property, a strip of land approximately 135 feet long running [*2]along the border separating its property from the property owned bythe defendant (hereinafter the premises). Specifically, the plaintiff alleged that it adverselypossessed the premises, which is bounded by a concrete curb located at the edge of defendant'sproperty, inter alia, by paving it with blacktop and painting parking spaces. The plaintiff furtheralleged that it used the premises as a means of ingress to and egress from its property, cleared thepremises of snow and ice, and maintained a portable dumptser there.
In accordance with the law that existed prior to July 7, 2008, to obtain title to land throughadverse possession on a claim not based upon a written instrument, plaintiffs had to demonstratethat they "usually cultivated, improved, or substantially enclosed the land" (Walsh vEllis, 64 AD3d 702, 703 [2009]; see RPAPL former 522; cf. L 2008, ch 269,§ 5; see also Bratone v Conforti-Brown, 79 AD3d 955 [2010]; Bernardi vSpyratos, 79 AD3d 684 [2010]). In 2008 the Legislature enacted changes to the adversepossession statutes contained in RPAPL article 5 (see L 2008, ch 269). In RPAPL 522,which deals with an adverse possession "not under [a] written instrument or judgment," theLegislature replaced the words "land is deemed to have been possessed and occupied. . . [w]here it has been usually cultivated or improved," with the words "land isdeemed to have been possessed and occupied . . . [w]here there have been actssufficiently open to put a reasonably diligent owner on notice" (L 2008, ch 269, § 5).Additionally, the Legislature added a new section, RPAPL 543, which states: "[n]otwithstandingany other provision of this article, the existence of de minimus [sic] non-structuralencroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds andnon-structural walls, shall be deemed to be permissive and non-adverse" (RPAPL 543 [1];see L 2008, ch 269, § 8). That section further states: "[n]otwithstanding any otherprovision of this article, the acts of lawn mowing or similar maintenance across the boundary lineof an adjoining landowner's property shall be deemed permissive and non-adverse" (RPAPL 543[2]; see L 2008, ch 269, § 8).
We note that the Appellate Division, Fourth Department, has held that the version of the lawin effect at the time that the purported adverse possession allegedly ripened into title is the lawapplicable to the claim, regardless of whether the action was commenced before or after theeffective date of the new legislation (see Franza v Olin, 73 AD3d 44 [2010]). However,we need not reach the issue decided by the Fourth Department in Franza v Olin becausethe complaint states a cause of action under both the law as it exists today and the law as itexisted prior to July 7, 2008.
Standing alone, the allegations that the plaintiff maintained a portable dumpster and clearedthe premises of snow and ice are insufficient to establish that the plaintiff's use of the premiseswas non-adverse (see RPAPL 543). However, accepting all of the facts alleged in thecomplaint as true and according the plaintiff the benefit of every possible inference (seeBreytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; Leon v Martinez,84 NY2d 83, 87 [1994]), even under the more constrictive newly enacted version of the RPAPL,we cannot say as a matter of law that the complaint fails to state a cause of action for adversepossession, particularly in light of the plaintiff's allegation that it blacktopped the premises fromthe edge of a building on its own property to the edge of a curb located on the outer boundary ofthe defendant's property (cf. Sawyer v Prusky, 71 AD3d 1325 [2010]).
The parties' remaining contentions are without merit. Mastro, J.P., Chambers, Lott andCohen, JJ., concur.