| McKeag v Finley |
| 2012 NY Slip Op 01539 [93 AD3d 925] |
| March 1, 2012 |
| Appellate Division, Third Department |
| Joan Linda McKeag, Appellant, v Madison K. Finley, Individuallyand as Trustee of the Gardner A. Finley Marital Trust, et al.,Respondents. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Mark E. Ceresano of counsel), forrespondents.
Garry, J. Appeal from an order of the Supreme Court (Hall Jr., J.), entered November 16,2010 in Warren County, which, among other things, granted defendants' cross motion forsummary judgment quieting title to certain real property.
Plaintiff owns a parcel of real property located on the western shore of Lake George in theTown of Bolton, Warren County. Defendants own the adjoining lakefront property, surroundingplaintiff's parcel on the north, west and south. Plaintiff's father, Nathan McKeag, operated amarina on the parcel now owned by plaintiff from approximately 1961 until his death in 1991,after which plaintiff continued to operate the business. Beginning in the early 1960s, McKeagand plaintiff used a 44-foot strip of defendants' lakefront property located immediately north ofplaintiff's parcel (hereinafter the beach) as a swimming area for the marina's customers. Plaintiffcommenced this action in 2006 seeking, among other things, to establish her adverse possessionof the beach and of certain other areas where encroachments had been created. [*2]Defendants answered and counterclaimed seeking to claim title tothe beach.[FN1] Plaintiff moved for summary judgment and defendants cross-moved for the samerelief.[FN2] Supreme Court granted plaintiff's motion with respect to the encroachment areas, but deniedplaintiff's motion and granted defendants' cross motion as to the beach. Plaintiff appeals.
To support her adverse possession claim, plaintiff was required to demonstrate that her use ofthe beach was " 'hostile and under a claim of right, actual, open and notorious, exclusive andcontinuous' for the statutory period of 10 years" (Ray v Beacon Hudson Mtn. Corp., 88NY2d 154, 159 [1996], quoting Brand v Prince, 35 NY2d 634, 636 [1974]). As plaintiff'sclaim was not founded on a written instrument, she was further required to show that the beachwas "usually cultivated or improved" or "protected by a substantial enclosure" (RPAPL former522 [1], [2]; accord 2 N. St. Corp. vGetty Saugerties Corp., 68 AD3d 1392, 1393 [2009], lv denied 14 NY3d 706[2010]).[FN3] A use is generally presumed to be hostile when the other elements of adverse possession areshown (see Chaner v Calarco, 77AD3d 1217, 1218 [2010], lv denied 16 NY3d 707 [2011]; 2 N. St. Corp. v GettySaugerties Corp., 68 AD3d at 1393). Here, it is undisputed that plaintiff and McKeag usedthe beach in their business for approximately 40 years, and plaintiff further claims that sheprevented defendants and others from using it. Additionally, there is evidence that McKeag andplaintiff stored a large wooden float on the beach during winter months, that plaintiff constructeda stone retaining wall with steps on the beach in approximately 1995, and that she has plantedflowers and bushes there. Accordingly, plaintiff made a prima facie showing that her use of thebeach was open, notorious, exclusive and continuous, and the burden shifted to defendants todefeat the presumption of hostility by demonstrating that the use was permissive (see Chanerv Calarco, 77 AD3d at 1218; Pickett v Whipple, 216 AD2d 833, 834 [1995]).
Defendant Madison K. Finley (hereinafter defendant) alleged by affidavit that he and hisfamily and friends continued to use the beach regularly throughout the period when plaintiff andMcKeag also used it, thus establishing the existence of issues of fact as to the element ofexclusivity sufficient to defeat plaintiff's summary judgment motion (see Estate of Becker v Murtagh, 75AD3d 575, 578 [2010], lv granted 16 NY3d 707 [2011]). As to the presumption ofhostility, when it is established that the initial use was permissive, " 'adverse possession does not[*3]commence until such permission or authority has beenrepudiated and renounced and the possessor thereafter has assumed the attitude of hostility to anyright in the real owner' " (Longshore v Hoel Pond Landing, 284 AD2d 815, 816 [2001],lv denied 97 NY2d 603 [2001], quoting Hinkley v State of New York, 234 NY309, 316 [1922]; accord Chaner v Calarco, 77 AD3d at 1218). Permission may beinferred from a history of "neighborly cooperation and accommodation" (Allen v Mastrianni, 2 AD3d 1023,1024 [2003]; see Wilcox v McLean,90 AD3d 1363, 1365-1366 [2011]; Chaner v Calarco, 77 AD3d at 1218).
Defendant testified by affidavit that he grew up on the Finley property, later spent summersthere, and now resides there full time. He alleged that based on his observations, his father andpredecessor in title, Gardner Finley, shared "a very friendly and cordial relationship" withplaintiff and McKeag, both before 1982 when Gardner Finley lived full time on the Finleyproperty and thereafter, when he wintered in Florida. Defendant noted that the Finley propertyincludes extensive lake frontage other than the beach and alleged that, in view of this fact andGardner Finley's friendly relations with plaintiff and McKeag, he was "very liberal and tolerant"of their use of the beach. Defendants submitted letters exchanged between these parties duringthe late 1980s and early 1990s, while plaintiff and McKeag were acting as caretakers for theFinley property; the beach is not mentioned, but the correspondence supports defendants' claimthat the relationship was friendly and neighborly on both sides.[FN4] Defendant further alleged that, after Gardner Finley died in 1992, defendant gave plaintiffpermission to continue using the beach, and reminded her on several occasions thereafter that thebeach was part of defendants' property. He further stated that plaintiff asked for his permission tomow grass on the beach, did not object when he cut down a bush there and, as recently as 2006,left a telephone message apologizing for a disabled jet ski that had been left on the beach. Thesesubmissions were sufficient to support defendants' cross motion with a prima facie showing thatthe use of the beach by McKeag and plaintiff was permissive, thus shifting the burden back toplaintiff "to show that such use was transformed into an adverse one by an assertion of anadverse right that was made known to [defendants]" (Pickett v Whipple, 216 AD2d at834).
Plaintiff did not meet that burden. She denied some of defendant's assertions, such as thealleged grants of permission by Gardner Finley and defendant to use the beach, store the float,and plant flowers. Further, she claimed that defendant once tried to dismantle the stone steps shehad constructed on the beach, but stopped doing so when she confronted him. However, sheadmitted that, as defendant claimed, she had called him to apologize for a disabled jet ski on thebeach after he complained about it. Further, she acknowledged that she and McKeag always hada cordial relationship with Gardner Finley, and she stated affirmatively that she never had anyconflict or "friction" with any member of the Finley family until defendant took over its affairs[*4]after Gardner Finley's death. An inference of permission thatrebuts the presumption of hostility may be drawn from this acknowledgment that plaintiff andMcKeag began using the beach in the context of a friendly relationship (see Chaner vCalarco, 77 AD3d at 1218). "[I]f the first possession is by permission it is presumed to socontinue until the contrary appears" (Longshore v Hoel Pond Landing, 284 AD2d at 816[internal quotation marks and citations omitted]). In this regard, plaintiff acknowledged thatdefendant "had discussed his ownership" of the beach with her several times "over the past 20years" and that he had once pointed out to her a marker he had placed to identify the boundaryline between their properties. She stated that she never disputed these claims at any time, butinstead made no response, "ignored him [and] walked away." These allegations are inconsistentwith plaintiff's claim of hostile and adverse use; by remaining silent instead of protestingdefendant's repeated claims of ownership, she "tacitly acknowledged [his] superior right to thedisputed lot," thus "defeat[ing] the claim of adverse possession" (Albright v Beesimer,288 AD2d 577, 579 [2001]). Plaintiff failed to counter defendants' showing that the use waspermissive or that she transformed this use into an adverse one by asserting a claim of right andmaking it known to the landowner (see Pickett v Whipple, 216 AD2d at 834; compareWilcox v McLean, 90 AD3d at 1365-1366). Accordingly, Supreme Court properly granteddefendants' cross motion for summary judgment quieting title to the property.
Lahtinen, J.P., Spain and Stein, JJ., concur. Ordered that the order is affirmed, with costs.
Footnote 1: Defendants raised no defensespertaining to the encroachment areas and concede on appeal that plaintiff successfully establishedher claim to those areas.
Footnote 2: Defendants' cross motion alsosought joinder of the Town of Bolton as a necessary party because it holds a perpetual easementover a public road that traverses the parties' properties. Supreme Court denied that aspect of thecross motion. Defendants did not appeal from this denial and plaintiff is not aggrieved by it; thus,the arguments raised by the parties pertaining to joinder are not properly before this Court(see generally CPLR 5511).
Footnote 3: The 2008 amendments toRPAPL article 5 are inapplicable to this action, which was commenced before the newlegislation's effective date (see L 2008, ch 269; Barra v Norfolk S. Ry. Co., 75 AD3d 821, 825 [2010]).
Footnote 4: Defendant also alleges byaffidavit that Gardner Finley granted permission to McKeag to store a float on the beach in theearly 1960s, told him not to charge fees to people who launched boats from the beach and, in the1970s, gave permission to plaintiff to plant flowers and bushes there. As required by the DeadMan's Statute (see CPLR 4519), we have considered these claims only with reference todefendants' opposition to plaintiff's motion for summary judgment and not with reference to theircross motion (see Pickett v Whipple, 216 AD2d at 834 n; Peters v Morse, 112AD2d 559, 559-560 [1985]).