| Klumpp v Freund |
| 2011 NY Slip Op 03036 [83 AD3d 790] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Theodore G. Klumpp, Jr., Respondent, v Helen Freund etal., Appellants-Respondents, and Brian Cahn et al.,Respondents-Appellants. |
—[*1] Smith, Finklestein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Frank A. Isler ofcounsel), for respondents-appellants. Albanese & Albanese, LLP, Garden City, N.Y. (Bruce W. Migatz of counsel), forplaintiff-respondent.
In an action pursuant to RPAPL article 15 to compel the determination of claims to realproperty and for injunctive relief, the defendants Helen Freund and Theodore Freund appeal, aslimited by their brief, from (1) stated portions of an order of the Supreme Court, Suffolk County(Pines, J.), dated October 19, 2009, and (2) stated portions of an order and judgment (one paper)of the same court entered January 25, 2010, which, inter alia, (a) granted that branch of the crossmotion of the defendants Brian Cahn, Lawrence Lefkowitz, and Donald Hecht, as executors ofestate of Milton Cahn which was for summary judgment granting the estate of Milton Cahn aneasement by necessity over parcel A, and declared that the estate of Milton Cahn possessed suchan easement, (b) denied that branch of their cross motion which was, in effect, for summaryjudgment declaring that the estate of Milton Cahn did not have an easement over parcel A, and(c) granted that branch of the plaintiff's motion which was for summary judgment granting theplaintiff a prescriptive easement over parcels A and B, and declaring that the plaintiff possessedsuch an easement, and the defendants Brian Cahn, Lawrence Lefkowitz, and Donald Hecht, asexecutors of estate of Milton Cahn cross-appeal from (1) stated portions of the order datedOctober 19, 2009, and (2) stated portions of the order and judgment (one paper) entered January25, 2010, which, inter alia, (a) granted that branch of the plaintiff's motion which was forsummary judgment declaring him to be the owner by adverse possession of parcel C, anddeclared him to be the owner, (b) in effect, denied that branch of its cross motion which was forsummary judgment declaring that the plaintiff had no ownership interest in parcel C, and (c)granted that branch of the plaintiff's motion which was for summary judgment awarding him aprescriptive easement over parcels A and B, and declared that the plaintiff possessed such aneasement.
Ordered that the appeal and cross appeal from the order dated October 19, 2009, aredismissed; and it is further,
Ordered that the order and judgment entered January 25, 2010, is modified, on the law, by (1)deleting the provisions thereof granting that branch of the plaintiff's motion which was forsummary judgment declaring him to be the owner by adverse possession of parcel C, anddeclaring [*2]him to be the owner, and substituting therefor aprovision denying that branch of the plaintiff's motion, (2) deleting the provisions thereof, ineffect, denying that branch of the cross motion of the defendants Brian Cahn, LawrenceLefkowitz, and Donald Hecht, as executors of estate of Milton Cahn which was for summaryjudgment declaring that the plaintiff had no ownership interest in parcel C, and substitutingtherefor provisions granting that branch of the cross motion and declaring that the plaintiff has noownership interest in parcel C, (3) deleting the provisions thereof granting that branch of thecross motion of the defendants Brian Cahn, Lawrence Lefkowitz, and Donald Hecht, as executorsof estate of Milton Cahn which was for summary judgment granting it an easement by necessityover parcel A, and declaring that the estate of Milton Cahn possessed such an easement, andsubstituting therefor a provision denying that branch of the cross motion, (4) deleting theprovision thereof, in effect, denying that branch of the cross motion of the defendants HelenFreund and Theodore Freund which was, in effect, for summary judgment declaring that theestate of Milton Cahn did not possess an easement over parcel A, and substituting thereforprovisions granting that branch of the cross motion, and declaring that the estate of Milton Cahndoes not possess such an easement, and (5) deleting the final decretal paragraph awarding coststo the plaintiff; as so modified, the order and judgment entered January 25, 2010, is affirmedinsofar as appealed and cross-appealed from, the order dated October 19, 2009, is modifiedaccordingly, and the matter is remitted to the Supreme Court, Suffolk County for the entry of anappropriate amended judgment; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs, payable by the plaintiff.
The appeal and cross appeal from the intermediate order dated October 19, 2009, must bedismissed because the right of direct appeal therefrom terminated with the entry of the order andjudgment entered January 25, 2010, in the action (see Matter of Aho, 39 NY2d 241, 248[1976]). The issues raised on the appeal and cross appeal from the order dated October 19, 2009,are brought up for review and have been considered on the appeal from the order and judgmententered January 25, 2010 (see CPLR 5501 [a] [1]).
Under the law as it existed at the time this action was commenced, the plaintiff, whose claimof adverse possession was not based upon a written document, was required to demonstrate thathe " 'usually cultivated, improved, or substantially enclosed' " parcel C, the real property heclaims to have acquired by adverse possession (Asher v Borenstein, 76 AD3d 984, 986 [2010], quoting Walsh v Ellis, 64 AD3d 702, 703[2009]; see RPAPL former 522). Moreover, the plaintiff had to establish that hispossession of parcel C was " '(1) hostile and under claim of right; (2) actual; (3) open andnotorious; (4) exclusive; and (5) continuous for the required period' " (Asher vBorenstein, 76 AD3d at 986, quoting Walling v Przybylo, 7 NY3d 228, 232 [2006]; see Walsh v Ellis, 64 AD3d 702[2009]). Here, the plaintiff failed to establish, prima facie, that his use of parcel C was open,exclusive, and continuous for the duration of the statutory period (see Estate of Becker v Murtagh, 75AD3d 575 [2010], lv granted 16 NY3d 707 [2011]; Kennelty-Cohen v Henry, 62 AD3d664 [2009]; Litwin v Town of Huntington, 208 AD2d 905 [1994]; Pegalis vAnderson, 111 AD2d 796 [1985]). The plaintiff also failed to establish, prima facie, that he"usually cultivated, improved, or substantially enclosed the land" (Walsh v Ellis, 64AD3d at 703; compare Merget vWestbury Props., LLC, 65 AD3d 1102 [2009]). Accordingly, the Supreme Court erredin granting that branch of the plaintiff's motion which was for summary judgment declaring himto be the owner by adverse possession of parcel C.
Furthermore, on its cross motion, the estate of Milton Cahn (hereinafter the Estate)established, prima facie, that the plaintiff acquired no ownership interest in parcel C by adversepossession (see Estate of Becker vMurtagh, 75 AD3d 575 [2010]; Almeida v Wells, 74 AD3d 1256 [2010]). In opposition, theplaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court erred by, in effect,denying that branch of the Estate's cross motion which was for summary judgment declaring thatthe plaintiff had no ownership interest in parcel C.
The Supreme Court properly determined that the plaintiff established, prima facie, hisentitlement to a prescriptive easement over parcels A and B, which he regularly used to accesshis garage (see Walsh v Ellis, 64 AD3d at 705; Rozenberg v Bacigalupo, 18 AD3d 854 [2005]; Borruso vMorreale, 129 AD2d 604 [1987]; see also Di Leo v Pecksto Holding Corp., 304 NY505 [1952]). In opposition, the defendants failed to raise a triable issue of fact. Accordingly, theSupreme Court properly granted that branch of the plaintiff's motion which was for summaryjudgment granting him a prescriptive [*3]easement over parcels Aand B.
In light of our determination that the plaintiff did not acquire an ownership interest in parcelC, the Estate is not entitled to an easement by necessity over parcel A to gain access to a publicroad. Parcel C, which the Estate retains, affords the Estate access to the public road. Accordingly,an easement over parcel A is not absolutely necessary (see Turner v Baisley, 197 AD2d681 [1993]; Van Schaack v Torsoe, 161 AD2d 701 [1990]; see generally Michalski v Decker, 16AD3d 469 [2005]). Thus, the Supreme Court erred in granting that branch of the Estate'scross motion which was for summary judgment granting it an easement by necessity over parcelA, and, in effect, denying that branch of the cross motion of the defendants Helen Freund andTheodore Freund which was, in effect, for summary judgment declaring that the Estate did nothave an easement over parcel A.
In light of our determination, we need not reach the defendants' remaining contentions.Skelos, J.P., Dickerson, Austin and Cohen, JJ., concur. [Prior Case History: 2009 NY SlipOp 32440(U).]