| Hogan v Kelly |
| 2011 NY Slip Op 06018 [86 AD3d 590] |
| July 19, 2011 |
| Appellate Division, Second Department |
| Luis O. Hogan, as Administrator of the Estate of Ferdinand Powell,Appellant, v Camille Kelly et al., Respondents. |
—[*1] White, Quinlan & Staley, LLP, Garden City, N.Y. (Terence M. Quinlan of counsel), forrespondents.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certain realproperty, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.),dated June 4, 2010, which granted that branch of the defendants' motion which was, in effect,pursuant to CPLR 3211 (c) for summary judgment dismissing the complaint and declaring themto be the owners of the subject property by adverse possession, and denied his cross motion forsummary judgment declaring him to be the owner of the subject property.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion which was, in effect, pursuant to CPLR 3211 (c) for summaryjudgment dismissing the complaint and declaring them to be the owners of the subject propertyby adverse possession and substituting therefor a provision denying the motion; as so modified,the order is affirmed, without costs or disbursements.
This action involves a dispute over the ownership of certain residential property located at191½ 8th Street in Brooklyn (hereinafter the premises). The late Ferdinand Powell(hereinafter the decedent) was the former title owner of the property. The defendants, DorothyKelly and Camille Kelly, claim that after the decedent became a widower in September 1992,they moved into the premises to assist him because of his age and health problems. Thedefendants further assert that they have continuously resided in the premises since 1992. Thedecedent died intestate on March 26, 1995, survived by one child, a daughter, Carmen Powell,who is a Panamanian citizen. Although Carmen Powell was the decedent's sole heir at law, onMarch 7, 1996, the decedent's brother, Bertram Powell, executed a deed purporting to conveytitle to the premises to the defendant Dorothy Kelly. The deed was subsequently recorded onJune 27, 1996.
Carmen Powell allegedly was unaware that the decedent had owned real property until shevisited the United States for the first time in the summer of 2008. Thereafter, on September 24,2009, the plaintiff, Luis O. Hogan, was appointed administrator of the decedent's estate. Upon hisappointment, the plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 todetermine claims to the premises. Prior to joinder of issue, the defendants moved, among otherthings, in effect, pursuant to CPLR 3211 (c) for summary judgment dismissing the complaint anddeclaring them to be the owners of the premises by adverse possession. The plaintiffcross-moved for summary judgment declaring him to be the owner of the premises. The SupremeCourt granted [*2]that branch of the defendants' motion whichwas, in effect, pursuant to CPLR 3211 (c) for summary judgment, and denied the plaintiff's crossmotion.
In order to establish a claim to property by adverse possession, a claimant must prove, interalia, that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3)open and notorious, (4) exclusive, and (5) continuous for the required period (see Walling v Przybylo, 7 NY3d228, 232 [2006]; Belotti v Bickhardt, 228 NY 296, 302 [1920]; Bratone v Conforti-Brown, 79 AD3d955, 957 [2010]; Asher vBorenstein, 76 AD3d 984, 986 [2010]; Gourdine v Village of Ossining, 72 AD3d 643 [2010]). Underlongstanding decisional law applying these traditional common-law elements, a party seekingadverse possession could assert that he or she was acting under a "claim of right" regardless ofwhether he or she had actual knowledge of the true owner at the time of possession (seeWalling v Przybylo, 7 NY3d at 232-233; Asher v Borenstein, 76 AD3d at 986; Merget v Westbury Props., LLC, 65AD3d 1102, 1105 [2009]). However, in 2008 the Legislature enacted changes to the adversepossession statutes contained in RPAPL article 5 (see L 2008, ch 269). These changesincluded rewriting RPAPL 501 to include, for the first time, a statutory definition of the "claim ofright" element necessary to acquire title by adverse possession. Pursuant to RPAPL 501 (3), "[a]claim of right means a reasonable basis for the belief that the property belongs to the adversepossessor or property owner, as the case may be." The 2008 amendments to RPAPL article 5took effect on July 7, 2008, and apply to all claims filed on or after the effective date of theamendments (see Hartman vGoldman, 84 AD3d 734 [2011]).
On appeal, the plaintiff contends, relying on the new statutory definition of "claim of right,"that the defendants failed to establish that they acquired title to the premises by adversepossession because they were aware that Carmen Powell was the decedent's sole heir and, thus,the rightful owner of the premises. Although this action was commenced after the effective dateof the 2008 amendments, we agree with our colleagues in the Third and Fourth Departments thatthe amendments cannot be retroactively applied to deprive a claimant of a property right whichvested prior to their enactment (seeHammond v Baker, 81 AD3d 1288, 1290 [2011]; Perry v Edwards, 79 AD3d 1629, 1631 [2010]; Barra v Norfolk S. Ry. Co., 75 AD3d821, 825-826 [2010]; Franza vOlin, 73 AD3d 44, 47-48 [2010]). Therefore, the version of the law in effect at the timethe purported adverse possession allegedly ripened into title is the law applicable to the claim,even if the action was commenced after the effective date of the new legislation. We note thatthis issue was not before us in Hartmanv Goldman (84 AD3d 734 [2011]), and was not necessary to resolve in Maya's Black Cr., LLC v Angelo BalboRealty Corp. (82 AD3d 1175 [2011]), in which we found that the plaintiff's complaintstated a cause of action under both prior and current law.
Here, the defendants' adverse possession claim is founded upon a written instrument, andthey allege that they acquired title to the premises on June 27, 2006, 10 years after the deedpurportedly conveying title to the defendant Dorothy Kelly was recorded. Since title allegedlyvested in the defendants prior to the enactment of the 2008 amendments, the new statutorydefinition of "claim of right" is not controlling. Applying long-standing decisional law, thedefendants made a prima facie showing that they possessed the premises under a claim of right,which was not defeated by their alleged knowledge that Carmen Powell was the rightful owner ofthe premises (see Walling v Przybylo, 7 NY3d at 232-233; Merget v Westbury Props.,LLC, 65 AD3d at 1105). In opposition, the plaintiff failed to raise a triable issue of fact as towhether the defendants' occupation of the premises was under a claim of right.
We nevertheless conclude that the branch of the defendants' motion which was, in effect,pursuant to CPLR 3211 (c) for summary judgment should have been denied because they failedto make a prima facie showing that their possession of the premises was hostile for the prescribedperiod. In support of their motion, the defendants submitted copies of monthly checks drawn bythe defendant Dorothy Kelly and payable to the decedent from May 1, 1994, through March 1,1995. Each of these checks is dated the first of the month, and each bears the notation "rent."RPAPL 531 provides that "[w]here the relation of landlord and tenant has existed, the possessionof the tenant is deemed the possession of the landlord until the expiration of ten years after thetermination of the tenancy; or, where there has been no written lease, until the expiration of tenyears after the last payment of rent." While the defendants aver that the subject checks werevoluntary contributions made to help the decedent with household expenses, the checks bear the[*3]indicia of rent payments. Accordingly, the defendants' ownevidentiary submissions raise a triable issue of fact as to whether they initially occupied thepremises as tenants. A finding that the defendants occupied the premises as tenants without awritten lease would raise a presumption of nonadversity for 10 years from the last payment ofrent (see Gallea v Hess Realty Corp., 128 AD2d 274, 277 [1987], affd 71 NY2d999 [1988]; Risi v Interboro Indus. Parks, 99 AD2d 466 [1984]), and require that aminimum period of 20 years elapse from the last payment of rent for their occupancy to ripeninto adverse possession. Thus, the existence of a triable issue of fact as to whether the defendantsentered the premises as tenants requires denial of that branch of their motion which was, ineffect, pursuant to CPLR 3211 (c) for summary judgment.
In view of the existence of a triable issue of fact as to whether the defendants acquired title tothe premises by adverse possession, the plaintiff is not entitled to summary judgment declaringhim to be the lawful owner of the premises at this juncture. Prudenti, P.J., Eng, Hall and Lott, JJ.,concur.