| Ram v Dann |
| 2011 NY Slip Op 04442 [84 AD3d 1204] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Paul Ram et al., Plaintiffs/Third-PartyDefendants-Respondents, v Joseph George Dann et al., Defendants/Third-PartyDefendants-Respondents. John T. Albert et al., Third-PartyPlaintiffs-Appellants. |
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In an action pursuant to RPAPL article 15 to determine claims to real property, thethird-party plaintiffs appeal from (1) a judgment of the Supreme Court, Suffolk County (Seidell,J.H.O.), dated July 8, 2008, which, after a nonjury trial, inter alia, awarded theplaintiffs/third-party defendants Paul Ram and Patricia Ram title to the subject real property infee simple absolute, and (2) an order of the same court dated March 13, 2009, which, upon thejudgment, among other things, directed the Sheriff of Suffolk County to convey the subjectproperty to the plaintiffs/third-party defendants by quitclaim deed.
Ordered that on the Court's own motion, so much of the notice of appeal as appealed fromthe order is deemed to be an application for leave to appeal from the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the judgment and the order are affirmed, without costs or disbursements.
"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" (Skyview Motel,LLC v Wald, 82 AD3d 1081, 1082 [2011]; see BTJ Realty, Inc. v Caradonna, 65AD3d 657, 658 [2009]; Goldschmidt v Ford St., LLC, 58 AD3d 803, 804 [2009]). "'Reduced to its essentials, this means nothing more than that there must be possession in fact of atype that would give the owner a cause of action in ejectment against the occupier throughout theprescriptive period' " (Hall v Sinclaire, 35 AD3d 660, 662 [2006], quoting Brand vPrince, 35 NY2d 634, 636 [1974]). "Additionally, where, as here, the adverse possession isnot founded upon a written instrument, the possessor must also establish, in accordance with thelaw in effect at the time this action was commenced, that the disputed property was either'usually cultivated or improved' or 'protected by a substantial inclosure' " (Skyview Motel,LLC v Wald, 82 AD3d at 1082, quoting RPAPL former 522; see BTJ Realty, Inc. vCaradonna, 65 AD3d at 658; Goldschmidt v Ford St., LLC, 58 AD3d at 805). "Sinceadverse possession is disfavored as a means of gaining title to land, all elements of an adversepossession claim must be proved by clear and convincing evidence" (Best & Co. Haircutters,Ltd. v Semon, 81 AD3d 766, 767 [2011]; see Ray v Beacon Hudson Mtn. Corp., 88NY2d 154, 159 [1996]; Walsh v Ellis, 64 AD3d 702, 703-704 [2009]). While "[t]hisCourt's 'authority to make factual determinations is as broad as that of the [*2]trial court and . . . as to a bench trial [this Court] mayrender the judgment [this Court] find[s] warranted by the facts,' " this Court will also " 'tak[e]into account in a close case the fact that the trial judge had the advantage of seeing the witnesses'" (Best & Co. Haircutters, Ltd. v Semon, 81 AD3d at 767 [some internal quotation marksomitted], quoting Zeltser v Sacerdote, 52 AD3d 824, 825-826 [2008]; see NorthernWestchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]).
Here, the Supreme Court properly determined that the third-party plaintiffs failed todemonstrate by clear and convincing evidence that they acquired title, by adverse possession, tothe parcel that is the subject of the third-party action. It is undisputed that the third-partyplaintiffs themselves did not continuously possess the subject parcel for the statutory period of 10years. The third-party plaintiffs assert that they should be entitled to tack on the immediatelypreceding period, during which their predecessors in interest possessed the subject parcel.However, "[t]he rule is that successive adverse possessions of property omitted from a deeddescription, especially contiguous property, may be tacked if it appears that the adverse possessorintended to and actually turned over possession of the undescribed part with the portion of theland included in the deed" (Brand v Prince, 35 NY2d at 637; see Reis v Coron,37 AD3d 803, 804 [2007]). Here, the Supreme Court properly concluded that the third-partyplaintiffs failed to demonstrate that their predecessors in interest intended to convey the subjectparcel along with the portion of the land included in the deed. Angiolillo, J.P., Dickerson, Belenand Sgroi, JJ., concur.