| Pakula v Podell |
| 2013 NY Slip Op 01247 [103 AD3d 864] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Hannah Pakula, Respondent, v Herbert Podell etal., Appellants, et al., Defendants. |
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Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, N.Y.(Christopher Kelly and Reza Ebrahimi of counsel), for respondent.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certainreal property, the defendants Herbert Podell and Loraine Podell appeal from an order ofthe Supreme Court, Suffolk County (Asher, J.), dated October 20, 2011, which grantedthe plaintiff's motion for summary judgment on her first and third causes of action anddismissing their counterclaims.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on her first and third causes of action and dismissing thecounterclaims is denied.
The plaintiff and the defendants Herbert Podell and Loraine Podell (hereinaftertogether the Podell defendants), are the owners of adjoining properties in East Hampton.The plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 to quiettitle and to eject the Podell defendants, who had allegedly encroached onto her propertyby, inter alia, planting shrubbery and trees. The Podell defendants counterclaimed,alleging that they had acquired title to the disputed area by adverse possession, andsought to enjoin the plaintiff from interfering with their property rights.
In 2008, the Legislature enacted changes to the adverse possession statutes (seeL 2008, ch 269). Here, however, since title allegedly vested in the Podell defendantsat the latest, in 1999, the law in effect prior to the amendments is applicable to their claim(see Hogan v Kelly, 86AD3d 590 [2011]). Accordingly, to establish a claim to property by adversepossession, the Podell defendants were required to prove, inter alia, that their possessionof the property was: (1) hostile and under a claim of right, (2) actual, (3) open andnotorious, (4) exclusive, and (5) continuous for the required period (see Walling v Przybylo, 7NY3d 228, 232 [2006]).
The Supreme Court erred in granting the plaintiff's motion for summary judgment onher first cause of action, which sought to quiet title to the subject disputed area, and herthird cause of action, which sought ejectment, and dismissing the counterclaims of thePodell defendants, [*2]which sought, inter alia, to enjointhe plaintiff from interfering with their property rights. The plaintiff failed to establish,prima facie, that the Podell defendants' possession was not under a claim of right ornonexclusive (see id. at 232).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have denied the plaintiff's motion forsummary judgment on her first and third causes of action and dismissing the Podelldefendants' counterclaims.
We decline the Podell defendants' request that we search the record and award themsummary judgment on their counterclaim alleging adverse possession. Rivera, J.P.,Chambers, Hall and Miller, JJ., concur.