| Sprotte v Fahey |
| 2012 NY Slip Op 03828 [95 AD3d 1103] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Donald J. Sprotte et al., Appellants, v Philip T. Fahey et al.,Respondents. |
—[*1] Ezratty, Ezratty & Levine, LLP, Mineola, N.Y. (Debra Genetin-Tate of counsel), forrespondents Philip T. Fahey and Margaret Daly Fahey. Fidelity National Law Group, New York, N.Y. (Amy Katcherian of counsel), for respondentsThomas Cahill and Barbara Cahill.
In an action pursuant to RPAPL article 15 to compel the determination of claims to certainreal property, and for a judgment declaring that the plaintiffs are the owners of the subjectproperty by adverse possession, the plaintiffs appeal, as limited by their brief, from so much of anorder of the Supreme Court, Nassau County (Brown, J.), dated August 4, 2011, as denied theirmotion for summary judgment on the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,the plaintiff's motion for summary judgment on the complaint is granted, and the matter isremitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that theplaintiffs are the owners of the subject property by adverse possession.
The plaintiffs, Donald and Carol Sprotte, have owned a parcel of land in Rockville Centre(hereinafter the Sprotte Lot), since 1970. The lot bordering the southern part of the eastern side ofthe Sprotte Lot (hereinafter the Cahill Lot) was owned by James Kasschaus and EileenKasschaus from 1979 to 1989, and by the defendants Steven Rosenblum and Kathy Rosenblumfrom 1989 to 2011. The defendants Thomas Cahill and Barbara Cahill purchased the Cahill Lotin 2011. The lot bordering the northern part of the eastern side of the Sprotte Lot (hereinafter theFahey Lot) was purchased by the defendants Philip Fahey and Margaret Fahey in November1999.
When the plaintiffs purchased the Sprotte Lot in 1970, they erected a fence about 3.2 feet tothe east of their actual property line, encroaching on both the Cahill Lot and the Fahey Lot. In1980, they installed a pool filter, a hot water heater, a chlorinator, a pool pump, and an electricaloutlet in this area. The plaintiffs also added inground sprinklers and lights to the property, andplanted hemlock, holly, and azalea bushes. They maintained these plants, including replacingdead bushes, for 31 years. As he was preparing to sell the Cahill Lot in 2010 to the Cahills,Steven Rosenblum asked the plaintiffs to remove the pool equipment from the disputed portionof the Cahill [*2]Lot. The plaintiffs refused, and Rosenblumremoved the equipment himself.
Shortly thereafter, the plaintiffs commenced this action, inter alia, to compel thedetermination of claims to the subject property. The plaintiffs moved for summary judgment onthe complaint. In affidavits in opposition, Steven Rosenblum admitted that he had been awarethat the plaintiffs were encroaching on his property, and Philip Fahey stated that the Faheys hadmaintained a tree on the disputed portion of the Fahey Lot since 1999. In an order dated August4, 2011, the Supreme Court denied the plaintiff's motion.
Adverse possession requires that the possession be hostile and under claim of right, actual,open and notorious, exclusive, and continuous for a period of 10 years (see RPAPL 501;Kelly v Bastianic, 93 AD3d691 [2012]). Pursuant to the law as it existed at the time the plaintiffs' adverse possessionclaim ripened (see Hogan v Kelly,86 AD3d 590, 592 [2011]), to obtain title to land through adverse possession on a claim notbased upon a written instrument, the plaintiffs had to demonstrate that they " 'usually cultivated,improved, or substantially enclosed the land' " (Maya's Black Cr., LLC v Angelo Balbo Realty Corp., 82 AD3d1175, 1176 [2011], quoting Walshv Ellis, 64 AD3d 702, 703 [2009]; see RPAPL former 522; cf. L 2008,ch 269, § 5). Here, the plaintiffs demonstrated their prima facie entitlement to judgment asa matter of law by submitting the affidavit of Donald Sprotte, which demonstrated that theplaintiffs acquired the Cahill and Fahey Lots by adverse possession (see generally Zuckermanv City of New York, 49 NY2d 557, 562 [1980]).
The Supreme Court erred in finding that, in opposition, the defendants raised triable issues offact. Philip Fahey's claim that the Faheys had maintained a tree on the disputed area of the FaheyLot since 1999 is irrelevant, because the plaintiffs' claim to that land by adverse possession hadalready ripened nine years earlier. In addition, Steven Rosenblum's admission that theRosenblums had been aware that the plaintiffs had been encroaching on their land did not refutethe plaintiffs' showing that they had openly and notoriously possessed the land for at least tenyears, since the Rosenblums neither attempted to eject the plaintiffs nor gave them expresspermission to use the land (see Asher vBorenstein, 76 AD3d 984, 986 [2010]; see generally Barra v Norfolk S. Ry. Co., 75 AD3d 821, 824[2010]).
Moreover, the Supreme Court erred in considering Thomas Cahill's statement that JamesKasschaus had told him that "any use the Sprottes made of the area behind the garage during theKasschauses' ownership of the property was based upon the Kasschauses' neighborlyaccommodation." "Although hearsay evidence may be considered in opposition to a motion forsummary judgment, it is insufficient to bar summary judgment if it is the only evidencesubmitted" (Rodriguez v Sixth President, 4 AD3d 406, 407 [2004]; see Arnold v NewYork City Hous. Auth., 296 AD2d 355, 356 [2002]). Here, this hearsay statement was theonly evidence submitted by the Cahills to show that the plaintiffs had permission to use thedisputed portion of the Cahill Lot for 9 of the 10 years of the period of adverse possession. Inaddition, the Cahills failed to articulate why they were unable to obtain an affidavit from JamesKasschaus.
Therefore, the Supreme Court should have granted the plaintiffs' motion for summaryjudgment on the complaint.
Since this is, in part, a declaratory judgment action, we remit the matter to the SupremeCourt, Nassau County, for the entry of an appropriate judgment declaring that the plaintiffs arethe owners of the subject property by adverse possession (see Lanza v Wagner, 11 NY2d317 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]).Angiolillo, J.P., Dickerson, Hall and Cohen, JJ., concur.