| Stroem v Plackis |
| 2012 NY Slip Op 05162 [96 AD3d 1040] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Jan Arthur Stroem, Respondent, v Nicholas Plackis,Defendant, and Stephen J. Weiss et al., Appellants. |
—[*1] Wickham, Bressler, Gordon & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler of counsel), forrespondent.
In an action, inter alia, to set aside a stipulation and boundary agreement, the defendantsStephen J. Weiss, Kathleen J. Weiss, and Judge, Weiss & Associates, Inc., appeal (1) from anorder of the Supreme Court, Suffolk County (R. Doyle, J.), dated August 23, 2007, which deniedtheir motion for summary judgment dismissing the complaint based on so much of their thirdaffirmative defense as alleged adverse possession, and (2), as limited by their brief, from so muchof a judgment of the same court (Farneti, J.), dated August 19, 2010, as, upon the order, and upona decision of the same court dated March 3, 2010, made after a nonjury trial, is in favor of theplaintiff and against them dismissing so much of the third affirmative defense as alleged adversepossession.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
This appeal arises from a boundary dispute between the plaintiff, the defendants Stephen J.Weiss, Kathleen J. Weiss, and Judge, Weiss & Associates, Inc. (hereinafter collectively theWeiss defendants), who are the owners of certain property adjacent to the plaintiff's property, andthe plaintiff's former neighbor, the defendant Nicholas Plackis (the predecessor in interest to theWeiss defendants). The plaintiff purchased his property in 2000 and, at some point thereafter,discovered that a shed and certain wood pilings installed by Plackis in the late 1960s encroachedon the plaintiff's property. In 2002, while Plackis was in negotiations to sell his property to theWeiss [*2]defendants, the plaintiff commenced an action againstPlackis pertaining to the encroachment. By the time that the property was conveyed to the Weissdefendants in April 2002, the plaintiff, Plackis, and the Weiss defendants had all executed astipulation and boundary agreement (hereinafter the stipulation), whereby the parties agreed thatthe shed would be removed or relocated, and the wood pilings would be permitted to remain withan acknowledgment that the continued used of the plaintiff's property would be with theplaintiff's express permission. The plaintiff discontinued the prior action against Plackis.
In 2004, the plaintiff commenced the instant action, inter alia, to set aside the stipulation onthe ground that it had been fraudulently altered by handwritten modifications without his consent.In their answer, the Weiss defendants asserted, among other things, an affirmative defensealleging, inter alia, adverse possession of the disputed land. Subsequently, the Weiss defendantsmoved for summary judgment dismissing the complaint based on so much of that affirmativedefense as alleged adverse possession. In an order dated August 23, 2007, the Supreme Courtdetermined that the stipulation specifically precluded any claim of adverse possession, anddenied the Weiss defendants' motion.
Following a nonjury trial, the Supreme Court found, among other things, that the plaintiff didnot agree to the handwritten modifications to the stipulation. Further, the Supreme Court foundthat the determination in the order dated August 23, 2007, that the stipulation precluded anyclaim of adverse possession was the law of the case. In a judgment dated August 19, 2010, theSupreme Court, inter alia, dismissed so much of the third affirmative defense as alleged adversepossession.
The Weiss defendants failed to establish their prima facie entitlement to judgment as a matterof law based on so much of the third affirmative defense as alleged adverse possession (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). The stipulation precluded the assertion of any claim ofadverse possession (see Russo RealtyCorp. v Orlando, 30 AD3d 499, 501 [2006]). Since the Weiss defendants failed to meettheir prima facie burden, their motion was properly denied, regardless of the sufficiency of theopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).
Contrary to the Supreme Court's determination, it was not bound at trial by the law of thecase doctrine to dismiss so much of the third affirmative defense as was based on a claim ofadverse possession. As the plaintiff bears the burden of proof at trial and the evidence at trial maybe different from that presented on a motion for summary judgment, a defendant may be entitledto judgment as a matter of law at trial even if the defendant previously was unsuccessful inmoving for summary judgment (see S.L.Benfica Transp., Inc. v Rainbow Media, Inc., 13 AD3d 348, 349 [2004]; see also Tarleton v Astor Galleries,Ltd., 70 AD3d 811 [2010]).
Nevertheless, "[i]n reviewing a determination made after a nonjury trial, the power of theAppellate Division is as broad as that of the trial court and it may render the judgment it findswarranted by the facts" (Hall vSinclaire, 35 AD3d 660, 661 [2006]; see Northern Westchester Professional ParkAssoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Here, the facts show that the Weissdefendants were not entitled to judgment in their favor on so much of the third affirmativedefense as alleged adverse possession.
"Actual possession adverse to the true owner for the statutory period is required before titlewill vest" by adverse possession (Brand v Prince, 35 NY2d 634, 636 [1974]; see Estate of Becker v Murtagh, 19NY3d 75 [2012]; see Hogan vKelly, 86 AD3d 590, 591 [2011]). "[T]here must be possession in fact of a type thatwould give the owner a cause of action in ejectment against the occupier throughout theprescriptive period" (Brand v Prince, 35 NY2d at 636; see Estate of Becker v Murtagh, 19NY3d 75 [2012]; Ram v Dann,84 AD3d 1204, 1206 [2011]). Where the individual claiming adverse possession has notpossessed the property for the statutory period, the owner may "tack his adverse possession tothat of his predecessor to satisfy the applicable statutory period" (Brand v Prince, 35NY2d at 637; see Ram v Dann, 84 AD3d at 1205). " '[T]he rule is that successive adversepossessions of property omitted from a deed description, especially contiguous property, may betacked if it appears that the adverse possessor intended to and actually turned over possession ofthe [*3]undescribed part with the portion of the land included inthe deed' " (Ram v Dann, 84 AD3d at 1206, quoting Brand v Prince, 35 NY2d at637).
Here, the evidence belies any assertion that Plackis intended to convey the wood pilings tothe Weiss defendants. In fact, although Stephen J. Weiss testified that he believed he waspurchasing the pilings, he acknowledged that, even prior to the purchase, he had discussed withthe plaintiff that the pilings were on the plaintiff's property, and not on Plackis's property.Moreover, even if the stipulation is unenforceable because of a material alteration, the stipulationis evidence that Plackis and the Weiss defendants knew and acknowledged that the pilings wereon the plaintiff's property with the plaintiff's permission at the time when the property wasconveyed to the Weiss defendants. Since the Weiss defendants failed to prove adverse possessionby clear and convincing evidence, dismissal of so much of the third affirmative defense asalleged adverse possession was warranted. Skelos, J.P., Balkin, Roman and Sgroi, JJ., concur.