| Calder v 731 Bergan, LLC |
| 2011 NY Slip Op 03014 [83 AD3d 758] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Claudette Calder et al., Appellants, v 731 Bergan, LLC,Respondent. |
—[*1] Rossi & Crowley, LLP, Douglaston, N.Y. (Thomas J. Rossi of counsel), forrespondent.
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 plaintiffs are the owners of thesubject property by adverse possession, the plaintiffs appeal from an order of the Supreme Court,Kings County (Kramer, J.), dated August 6, 2009, which (a) denied their motion to stay, amongother things, all proceedings in an action entitled 731 Bergan, LLC v Calder, pending inthe Civil Court of the City of New York, Kings County, under index No. 55697/09, andenforcement of an order of the Civil Court dated April 24, 2009, denying their motion to restoreto them possession of the disputed property, and (b), in effect, sua sponte, directed the dismissalof the instant complaint on the grounds of collateral estoppel and that the plaintiffs could notestablish a claim of right to the disputed property.
Ordered that on the Court's own motion, the plaintiffs' notice of appeal from so much of theorder dated August 6, 2009, as, in effect, sua sponte, directed dismissal of the complaint isdeemed to be an application for leave to appeal from that portion of the order, and leave to appealis granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law and the facts, with costs, and the plaintiffs'motion for a stay is granted.
Contrary to the defendant's contentions, the plaintiffs are not collaterally estopped fromlitigating the issue of adverse possession in the Supreme Court. Collateral estoppel applies when(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actuallylitigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding,and (4) the issue previously litigated was necessary to support a valid and final judgment on themerits (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]; GramatanHome Invs. Corp. v Lopez, 46 NY2d 481, 485 [1979]; Alamo v McDaniel, 44 AD3d 149, 153 [2007]). Here, the plaintiffsdid not have the opportunity to litigate the issue of adverse possession in the Civil Court of theCity of New York.[*2]
The Supreme Court erred in determining that theplaintiffs failed to establish a claim of right to the disputed property. In order to establish a claimto land by adverse possession, the adverse claimant must establish that possession has been"adverse, under claim of right, open and notorious, continuous, exclusive, and actual" (RPAPL501 [2]; see Koudellou v Sakalis, 29AD3d 640 [2006]; Congregation Yetev Lev D'Satmar v 26 Adar N.B. Corp., 192AD2d 501, 503 [1993]). "A claim of right means a reasonable basis for the belief that theproperty belongs to the adverse possessor" (RPAPL 501 [3]). Here, the plaintiffs established areasonable basis for their belief that they owned the disputed property by submitting an affidavitof the plaintiff Claudette Calder stating that they were advised that the disputed parcel was a partof the property they purchased from the United States Secretary of Housing and UrbanDevelopment in 1974.
Accordingly, the Supreme Court erred when it, in effect, sua sponte, directed dismissal of thecomplaint, and under the circumstances should have granted the stay sought by the plaintiffs.Rivera, J.P., Leventhal, Sgroi and Miller, JJ., concur.