| Shilkoff v Longhitano |
| 2012 NY Slip Op 02861 [94 AD3d 974] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Paul Shilkoff et al., Appellants, v Jeanne Longhitano,Respondent. |
—[*1] McGovern, Connelly & Davidson, New Rochelle, N.Y. (Frank H. Connelly, Jr., of counsel),for respondent.
Motion by the respondent for leave to reargue an appeal from an order of the Supreme Court,Westchester County, entered March 22, 2011, which was determined by decision and order ofthis Court dated December 20, 2011.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted to the extent that the decision and order of this Courtdated December 20, 2011, is recalled and vacated and the following decision and order issubstituted therefor, and the motion is otherwise denied:
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certain realproperty, the plaintiffs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Westchester County (Bellantoni, J.), entered March 22, 2011, as denied those branches oftheir cross motion which were for summary judgment declaring them to be the owners of thesubject property by adverse possession and to enjoin the defendant from entering the subjectproperty.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thosebranches of the plaintiffs' cross motion which were for summary judgment declaring them to bethe owners of the subject property by adverse possession and to enjoin the defendant fromentering the subject property are granted, and the matter is remitted to the Supreme Court,Westchester County, for the entry of a judgment, inter alia, declaring that the plaintiffs are theowners of the subject property by adverse possession, and enjoining the defendant from enteringthe subject property.
The plaintiffs and the defendant own neighboring lots of real property in the City of NewRochelle. The plaintiffs purchased their lot in 2004 and the defendant purchased her lot in [*2]2007. According to the plaintiffs, beginning in 1986, theirpredecessor in interest continuously occupied and used a portion of real property (hereinafter thesubject property) situated on the defendant's lot which included an uninterrupted row oflandscaped trees called arborvitae and various other plants and shrubbery (hereinafter thedisputed parcel). In 2008, the defendant trimmed portions of the arborvitae within the subjectproperty. Thereafter, the plaintiffs commenced this action, inter alia, for a judgment declaringthem to be the owners of the subject property by adverse possession and to enjoin the defendantfrom entering the subject property. In the order appealed from, the Supreme Court, among otherthings, denied those branches of the plaintiffs' cross motion which were for summary judgmentdeclaring them to be the owners of the subject property by adverse possession and to enjoin thedefendant from entering the subject property. The plaintiffs appeal. We reverse the order insofaras appealed from.
The Supreme Court properly determined that the 2008 amendments to the adverse possessionstatutes contained in RPAPL article 5 (see L 2008, ch 269, § 5) are not applicablebecause the plaintiffs' property right, as alleged, vested prior to the enactment of thoseamendments (see Hogan v Kelly, 86AD3d 590, 592 [2011]; Hammondv 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]).
To claim title to real property by adverse possession, in accordance with the law asapplicable here, the party seeking title must demonstrate that the parcel was "usually cultivated orimproved" or "protected by a substantial inclosure" (RPAPL former 522 [1], [2]; see BTJ Realty, Inc. v Caradonna, 65AD3d 657, 658 [2009]; Walsh vEllis, 64 AD3d 702 [2009]). In addition, the party claiming title must demonstrate, byclear and convincing evidence, satisfaction of the following five common-law elements of theclaim over the course of the applicable statutory period: (1) the possession must be hostile andunder a claim of right; (2) it must be actual; (3) it must be open and notorious; (4) it must beexclusive; and (5) it must be continuous (see Belotti v Bickhardt, 228 NY 296, 302[1920]; Almeida v Wells, 74 AD3d1256 [2010]).
In support of those branches of their cross motion which were for summary judgmentdeclaring them to be the owners of the subject property by adverse possession and to enjoin thedefendant from entering the subject property, the plaintiffs submitted, among other things, anaffidavit from their predecessor in interest. The affidavit demonstrated that, since 1986, theplaintiffs' predecessor in interest had "usually cultivated, improved, or substantially enclosed theland" within the disputed parcel (Walsh v Ellis, 64 AD3d at 703; see RPAPLformer 522). Moreover, the evidence submitted established the five common-law elements of theplaintiffs' adverse possession claim.
The Supreme Court erred in finding that in opposition to the plaintiffs' prima facie showing,the defendant raised a triable issue of fact. In that regard, the defendant submitted, inter alia, anaffidavit wherein she averred that the arborvitae on the disputed parcel "were planted by [her]predecessor, and require trimming from time to time." The defendant's assertion in her affidavitthat her predecessor in interest planted the arborvitae on the disputed parcel constitutesinadmissible hearsay, as she only purchased her property in 2007, and she failed to indicatewhether she had personal knowledge that her predecessor in interest had planted the arborvitae orusually cultivated them (see Harris vFive Point Mission—Camp Olmstedt, 73 AD3d 1127, 1129 [2010]; cf. Charter One Bank, FSB v Leone, 45AD3d 958, 959 [2007]). The other evidence submitted by the defendant, including twoaffidavits from her attorney, were insufficient to raise a triable issue of fact. Moreover, thedefendant's contention that the plaintiffs' motion was premature is improperly raised for the firsttime on appeal, and, thus, is not properly before this Court (see Panteleon v Amaya, 85 AD3d 993, 995 [2011]).
Accordingly, those branches of the plaintiffs' cross motion which were for summaryjudgment declaring them to be the owners of the subject property by adverse possession and toenjoin the defendant from entering the subject property should have been granted.
Since this is, in part, a declaratory judgment action, the matter must be remitted to [*3]the Supreme Court, Westchester County, for the entry of ajudgment, inter alia, making the appropriate declaration (see Lanza v Wagner, 11 NY2d317 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).
The defendant's remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal andLott, JJ., concur.