| CSC Acquisition-NY, Inc. v 404 County Rd. 39A, Inc. |
| 2012 NY Slip Op 05130 [96 AD3d 986] |
| June 27, 2012 |
| Appellate Division, Second Department |
| CSC Acquisition-NY, Inc., Respondent, v 404 CountyRoad 39A, Inc., Appellant. |
—[*1] Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP, Uniondale, N.Y. (DonaldJay Schwartz and Danielle B. Gatto of counsel), for respondent.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certain realproperty, the defendant appeals, as limited by its brief, from so much of an order of the SupremeCourt, Suffolk County (Pastoressa, J.), dated January 6, 2011, as granted those branches of theplaintiff's motion which were for summary judgment on its first, second, third, and fourth causesof action, and on so much of its seventh cause of action as sought a declaration that thedefendant's actions constitute a continuing trespass onto the plaintiff's property and, in effect, forsummary judgment dismissing the defendant's counterclaims, and denied its cross motion forsummary judgment dismissing the complaint and on its counterclaims.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff and the defendant own adjacent parcels of land in the Village of Southampton.In June 2009, the plaintiff commenced this action to determine claims to certain property, torecover damages for trespass, and for related declaratory and injunctive relief. The defendant,which acquired its property in October 2000 for the purposes of operating a car wash, admittedthe allegations with respect to use of and encroachment upon the plaintiff's property, but assertedcounterclaims for adverse possession and prescriptive easement. After discovery, the plaintiffmoved for summary judgment on the complaint and, in effect, dismissing the defendant'scounterclaims. The defendant cross-moved for summary judgment dismissing the complaint andon its counterclaims. The Supreme Court granted those branches of the plaintiff's motion whichwere for summary judgment on its first, second, third, and fourth causes of action, and on somuch of its seventh cause of action as sought a declaration that the defendant's actionsconstituted a continuing trespass onto the plaintiff's property. Accordingly, the Supreme Courtalso denied the defendant's cross motion for summary judgment and dismissed the defendant'scounterclaims. The defendant appeals, and we affirm the order insofar as appealed from.
"The essence of trespass is the invasion of a person's interest in the exclusive possession ofland" (Zimmerman v Carmack, 292 AD2d 601, 602 [2002]). An unlawful encroachmenthas [*2]been consistently characterized as a continuous trespassgiving rise to successive causes of action, and the statute of limitations would only bar recoveryof damages more than three years prior to commencement of the action (see Bloomingdales, Inc. v New York CityTr. Auth., 52 AD3d 120, 123 [2008], affd 13 NY3d 61 [2009]). "The threat ofcontinuing trespass entitles a property owner to injunctive relief where irreparable injury mayresult" (Long Is. Gynecological Servs. v Murphy, 298 AD2d 504, 504 [2002];Exchange Bakery & Rest. v Rifkin, 245 NY 260 [1927]).
A party seeking to obtain title by adverse possession must prove by clear and convincingevidence that the possession was (1) hostile and under claim of right, (2) actual, (3) open andnotorious, (4) exclusive, and (5) continuous for the statutory period of 10 years (see Skyview Motel, LLC v Wald, 82AD3d 1081, 1082 [2011]; BTJRealty, Inc. v Caradonna, 65 AD3d 657, 658 [2009]). "Since adverse possession isdisfavored as a means of gaining title to land, all elements of an adverse possession claim mustbe proved by clear and convincing evidence" (Best & Co. Haircutters, Ltd. v Semon, 81 AD3d 766, 767 [2011]).Similarly, "[a]n easement by prescription is generally demonstrated by proof of the adverse, openand notorious, continuous, and uninterrupted use of the subject property for the prescriptiveperiod" (Almeida v Wells, 74 AD3d1256, 1259 [2010]; see 315 MainSt. Poughkeepsie, LLC v WA 319 Main, LLC, 62 AD3d 690, 691 [2009]; Frumkin vChemtop, 251 AD2d 449 [1998]). The elements of a prescriptive easement must beestablished by clear and convincing evidence (see Air Stream Corp. v 3300 Lawson Corp., 84 AD3d 987 [2011],revd on other grounds 18 NY3d 972 [2012]; Mandia v King Lbr. & Plywood Co.,179 AD2d 150, 156 [1992]), and " '[t]he right acquired by prescription is commensurate with theright enjoyed' " (Thury v BritanniaAcquisition Corp., 19 AD3d 586, 587 [2005], quoting Prentice v Geiger, 74 NY341, 347 [1878]; see Zutt v State ofNew York, 50 AD3d 1133, 1133 [2008]).
Here, the plaintiff's submissions were sufficient to establish its prima facie entitlement tojudgment as a matter of law on its causes of action alleging trespass and for related injunctiverelief (see Skyview Motel, LLC vWald, 82 AD3d 1081 [2011]). The plaintiff also demonstrated, among other things, thatthe defendant could not satisfy the 10-year prescriptive period for the purposes of itscounterclaims for adverse possession and prescriptive easement (see Reis v Coron, 37 AD3d 803[2007]).
In opposition to the plaintiff's showing, the defendant failed to raise a triable issue of fact(see Zuckerman v City of New York, 49 NY2d 557 [1980]). Contrary to the defendant'scontention, it failed to establish, by clear and convincing evidence, that the prescriptive periodcould be satisfied by "tack[ing]" on a period of adverse possession or use by itspredecessor-in-interest (Brand v Prince, 35 NY2d 634, 637 [1974]). Mastro, A.P.J.,Florio, Chambers and Roman, JJ., concur. [Prior Case History: 2011 NY Slip Op30127(U).]