| Hartman v Goldman |
| 2011 NY Slip Op 03804 [84 AD3d 734] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Scott Hartman et al., Appellants, v Dorian Goldman,Respondent. |
—[*1] Adam Leitman Bailey, P.C. (John M. Desiderio and Jeffrey R. Metz of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that the plaintiffs acquired title to certain realproperty of the defendant by adverse possession, the plaintiffs appeal, as limited by their noticeof appeal and brief, from so much of an order of the Supreme Court, Westchester County,(Colabella, J.), entered March 30, 2010, as granted that branch of the defendant's cross motionwhich was for summary judgment, in effect, dismissing so much of the complaint allegingadverse possession as is based upon the installation of driveway lights, the planting of foliageand shrubbery, and landscaping and lawn maintenance, and as denied their application pursuantto CPLR 3212 (b) for summary judgment on the complaint.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asdenied the plaintiffs' application pursuant to CPLR 3212 (b) for summary judgment on thecomplaint is deemed an application for leave to appeal from that portion of the order, and leaveto appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs and the defendant are neighboring residential property owners. The plaintiffsseek title through adverse possession to a strip of land on the defendant's property directlyadjacent to the eastern edge of the plaintiffs' driveway (hereinafter the disputed strip). Theplaintiffs believed they owned the disputed strip based upon a survey they obtained in 1987,when they purchased the property and built their home. They allege that, over the course of morethan 20 years, they have installed a drainage system beneath the land and driveway lights, plantednew foliage and shrubbery, and maintained and landscaped the lawn. In 2007, the defendantcommissioned a land survey, which concluded that the disputed strip belonged to her. Accordingto that survey, a bed of shrubbery, a six-inch edge at the end of the plaintiffs' driveway, and oneof the three driveway lights are on the defendant's side of the property line, and another drivewaylight is on the property line.
The plaintiffs commenced the present action in April 2009, inter alia, for a judgmentdeclaring they acquired title to the disputed strip through adverse possession. The Supreme Courtgranted [*2]that branch of the defendant's cross motion whichwas for summary judgment, in effect, dismissing so much of the complaint as is based upon theplaintiffs' installation of driveway lights, planting of foliage and shrubbery, and landscaping andlawn maintenance, holding that such de minimis encroachments are deemed permissive andnonadverse pursuant to RPAPL 543. The Supreme Court denied that branch of the defendant'scross motion which pertained to the alleged drainage system with leave to renew after thecompletion of discovery, holding that the defendant had failed to eliminate triable issues of factas to whether the plaintiffs' installation of the system could sustain their adverse possessionclaim. We affirm.
The parties do not dispute that this action is governed by article 5 of the RPAPL, as amendedin 2008, applicable to all claims filed on or after July 7, 2008 (L 2008, ch 269, § 9). Underthe current law, an "adverse possessor" is defined as a person who "occupies real property ofanother person or entity with or without knowledge of the other's superior ownership rights, in amanner that would give the owner a cause of action for ejectment" (RPAPL 501 [1]). Theadverse possessor acquires title to the occupied real property upon the expiration of the 10-yearstatutory period (see CPLR 212 [a]) where the use "has been adverse, under claim ofright, open and notorious, continuous, exclusive, and actual" (RPAPL 501 [2]). With respect toan adverse possession claim not founded upon a written instrument or judgment, land "is deemedto have been possessed and occupied" only "[w]here there have been acts sufficiently open to puta reasonably diligent owner on notice," or "[w]here it has been protected by a substantialenclosure" (RPAPL 522). RPAPL 543 provides, however, that "the existence of de [minimis]non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings,sheds and non-structural walls," as well as "the acts of lawn mowing or similar maintenanceacross the boundary line of an adjoining landowner's property shall be deemed permissive andnon-adverse."
RPAPL 543 represents a change in the law. In pre-amendment cases, the existence of thekinds of nonstructural encroachments and maintenance listed in RPAPL 543 could be consideredin determining whether the plaintiff had shown that he or she usually cultivated, improved, orsubstantially enclosed the land, and the type of cultivation or improvement sufficient to satisfythe statute varied with the character, condition, location, and potential uses of the property (see Asher v Borenstein, 76 AD3d984, 986 [2010]; cf. Walsh vEllis, 64 AD3d 702, 704-705 [2009]). Under the plain terms of RPAPL 543 as amended,the plaintiffs' plantings of foliage and shrubbery, and landscaping and lawn maintenance are deminimis and deemed permissive and nonadverse (see Sawyer v Prusky, 71 AD3d 1325, 1327 [2010]). Further, thedriveway lights installed by the plaintiffs, which are approximately four feet high and six inchesin diameter, are also governed by RPAPL 543, which applies to all de minimis, nonstructuralencroachments "including, but not limited to," those expressly listed in the statute. Accordingly,the Supreme Court properly granted that branch of the defendant's cross motion which was forsummary judgment, in effect, dismissing so much of the complaint alleging adverse possessionas is based upon these de minimis encroachments. As triable issues of fact exist with respect tothe remaining portion of the complaint, the Supreme Court properly declined to award summaryjudgment to either the plaintiffs or the defendant (see CPLR 3212 [b]; Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
The plaintiffs' remaining contentions are without merit. Covello, J.P., Angiolillo, Dickersonand Roman, JJ., concur.