| Kelly v Bastianic |
| 2012 NY Slip Op 01798 [93 AD3d 691] |
| March 13, 2012 |
| Appellate Division, Second Department |
| Mark Kelly et al., Respondents-Appellants, v RosemaryBastianic et al., Appellants-Respondents. |
—[*1] Eric S. Pillischer, Islandia, N.Y., for respondents-appellants.
In an action, inter alia, to enjoin the defendants from trespassing on the plaintiffs' propertyand for a judgment declaring that the plaintiffs own certain real property in fee simple by adversepossession, the defendants appeal, as limited by their brief, from so much of an order of theSupreme Court, Suffolk County (Pitts, J.), dated November 15, 2010, as denied their motion forsummary judgment, and the plaintiffs cross-appeal, as limited by their brief, from so much of thesame order as denied those branches of their cross motion which were for summary judgment ontheir cause of action to enjoin the defendants from trespassing on their property and on theirdeclaratory judgment cause of action.
Ordered that the order is affirmed insofar as appealed from; and it is further,
Ordered that the order is reversed insofar as cross-appealed from, on the law, those branchesof the plaintiffs' cross motion which were for summary judgment to enjoin the defendants fromtrespassing on their property and on their declaratory judgment cause of action are granted, andthe matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgmentdeclaring that the plaintiffs own the disputed property in fee simple by adverse possession; and itis further,
Ordered that one bill of costs is awarded to the plaintiffs.
This case involves a dispute over real property that measures approximately one foot inwidth by 125 feet in length. The disputed property is located between two adjoining parcels ofproperty in Mastic Beach. The plaintiffs began renting the premises located on one of the parcelsin 1986. They purchased that property in December 1989 and have since lived there, except forone year in 1991, when they rented the property to a third party. The defendants purchased theproperty located next door in 2003.
According to the plaintiffs, when they began living on the property, a six-foot high [*2]stockade fence was located along part of the border between theirproperty and the subject property next door. The fence extended from the northern boundary oftheir property to a midway point of their yard. Based on a land survey from 1981, the fencesupposedly was built along the property line. In 1989, the plaintiffs replaced the fence using theold fence post holes, which resulted in the new fence being located in the same place as the oldfence. The plaintiffs also planted and cultivated bushes that ran the entire length of the borderbetween the properties. In the late 1990s, the defendants' predecessor extended the fence south tothe street. The plaintiffs believed that the fence was located on the property line, and that all ofthe property on their side of the fence belonged to them.
In 1999 or 2000, the plaintiffs surveyed their property in order to obtain permits to renovatetheir house. The survey indicated that the fence slightly encroached on the defendants' property.The plaintiffs never discussed this with the defendants' predecessor. As far as they wereconcerned, the property located on their side of the fence belonged to them.
In 2004, allegedly after asking the plaintiffs' permission, the defendants replaced part of thefence using the same fence posts. Although the defendants' survey of their property when theybought it in 2003 indicated that the fence encroached on their property, the defendants allegedthat they were not aware of the encroachment at that time.
In 2007, the defendants' survey was revised, and a stake was set at the actual property linebetween the two properties. Thereafter, the defendants allegedly began putting wooden stakesand string along the actual property line on the plaintiffs' side of the fence. The plaintiffsremoved the stakes and string and commenced this action, inter alia, for a judgment declaringthat the disputed property belonged to them through adverse possession and to enjoin thedefendants from trespassing on their property. The defendants moved for summary judgment.The plaintiffs cross-moved, inter alia, for summary judgment on their declaratory judgment causeof action and on their cause of action to enjoin the defendants from trespassing on their property.The Supreme Court denied the motion and the cross motion.
"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 AD3d1081, 1082 [2011]; see BTJ Realty,Inc. v Caradonna, 65 AD3d 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 vSinclaire, 35 AD3d 660, 662 [2006], quoting Brand v Prince, 35 NY2d 634, 636[1974]).
"[Hostile possession] does not require a showing of enmity or specific acts of hostility. . . All that is required is a showing that the possession constitutes an actualinvasion of or infringement upon the owner's rights . . . Consequently, hostility maybe found even though the possession occurred inadvertently or by mistake" (Hall vSinclaire, 35 AD3d at 663 [internal quotation marks omitted]; see Gore v Cambareri,303 AD2d 551, 553 [2003]; Randisi v Mira Gardens, 272 AD2d 387, 388 [2000];Greenberg v Sutter, 257 AD2d 646, 646-647 [1999]). Additionally, under the law as itexisted when the plaintiffs commenced this action (see Asher v Borenstein, 76 AD3d 984, 986 [2010]; see alsoL 2008, ch 269), "actual knowledge that another person is the title owner does not, in and ofitself, defeat a claim of right by an adverse possessor" (Walling v Przybylo, 7 NY3d 228, 230 [2006]). "Conduct willprevail over knowledge" (id. at 232).
Further, "where, as here, the adverse possession is not founded upon a written instrument, thepossessor must also establish, in accordance with the law in effect at the time this action wascommenced, that the disputed property was either usually cultivated or improved or "protected bya substantial inclosure" (Ram vDann, 84 AD3d 1204, 1205 [2011] [internal quotation marks omitted]; see SkyviewMotel, LLC v Wald, 82 AD3d at 1082; RPAPL former 522; BTJ Realty, Inc. vCaradonna, 65 AD3d at 658; Goldschmidt v Ford St., LLC, 58 AD3d at 805). "Sinceadverse [*3]possession is disfavored as a means of gaining title toland, all elements of an adverse possession claim must be proved by clear and convincingevidence" (Best & Co. Haircutters, Ltd.v Semon, 81 AD3d 766, 767 [2011]; see Ray v Beacon Hudson Mtn. Corp., 88NY2d 154, 159 [1996]).
The plaintiffs presented evidence establishing, prima facie, that they acquired the property byadverse possession, and the defendants failed to raise a triable issue of fact in opposition or toestablish their own prima facie entitlement to judgment as a matter of law. The plaintiffs showedthat they actually invaded the defendants' property and infringed upon their rights for the required10-year period, that the possession was open and notorious, and that it was exclusive (seeWalling v Przybylo, 7 NY3d at 232; Hall v Sinclaire, 35 AD3d at 663; Randisi vMira Gardens, 272 AD2d at 388; Greenberg v Sutter, 257 AD2d at 646-647).Additionally, the plaintiffs showed that they "usually cultivated or improved" the disputedproperty in accordance with the law applicable at the time (see RPAPL former 522). Thedefendants failed to show that the plaintiffs did not adversely possess the disputed property, andfailed to raise a triable issue of fact in response to the plaintiffs' prima facie showing.
Accordingly, those branches of the plaintiffs' cross motion which were for summaryjudgment on their declaratory judgment cause of action and on their cause of action to enjoin thedefendants from trespassing on their property should have been granted. For the same reasons,the defendants' motion was properly denied.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Suffolk County, for the entry of a judgment, inter alia, declaring that the plaintiffs own thedisputed property in fee simple by adverse possession (see Lanza v Wagner, 11 NY2d317 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).Skelos, J.P., Dickerson, Belen and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op33309(U).]