| Marone v Kally |
| 2013 NY Slip Op 05882 [109 AD3d 880] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Freya Marone et al., Appellants, v Charles M.Kally et al., Respondents, et al., Defendant. |
—[*1] Lopresto & Barbieri, P.C., Astoria, N.Y. (Guy Barbieri of counsel), forrespondents.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination ofclaims to certain real property, and for a judgment declaring that the plaintiffs are theowners of the subject real property by adverse possession, the plaintiffs appeal, as limitedby their brief, from so much of a judgment of the Supreme Court, Queens County(Strauss, J.), entered February 23, 2012, as, upon a decision of the same court (Thomas,J.H.O.) dated May 24, 2011, made after a nonjury trial, dismissed the first cause ofaction, which was to compel the determination of claims to certain real property and for ajudgment declaring that the plaintiffs are the owners of the subject real property byadverse possession, and the third cause of action, which was to recover damages fortrespass, insofar as asserted against the defendants Charles M. Kally and Mimi M. Kally.
Ordered that the judgment is reversed insofar as appealed from, on the facts, withcosts, the first and third causes of action are reinstated insofar as asserted against thedefendants Charles M. Kally and Mimi M. Kally, and the matter is remitted to theSupreme Court, Queens County, for the entry of an appropriate amended judgmentdeclaring that the plaintiffs are the owners of the subject real property by adversepossession and awarding them compensatory damages in the sum of $7,320, payable bythe defendants Charles M. Kally and Mimi M. Kally.
In 2007, the plaintiffs commenced this action, inter alia, pursuant to RPAPL article15 to compel the determination of claims to a strip of land between their real propertyand the real property of the defendants Charles M. Kally and Mimi M. Kally (hereinaftertogether the Kallys). In the complaint, the plaintiffs alleged that they became the ownersof the subject strip of land by adverse possession in 2004, having erected a walloccupying the entirety of the strip in July 1994. The plaintiffs also sought to recovercompensatory and punitive damages based on the Kallys' conduct of demolishing thewall in July 2007. After a nonjury trial, a Judicial Hearing Officer determined, in awritten decision, that the plaintiffs failed to establish the requisite elements of adversepossession and that the complaint should be dismissed in its entirety. A judgment wasthereafter entered dismissing the complaint.
In reviewing a determination made after a nonjury trial, the power of this Court is as[*2]broad as that of the trial court, and it may render thejudgment it finds warranted by the facts, bearing in mind that in a close case, the trialjudge had the advantage of seeing the witnesses (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Parr v Ronkonkoma RealtyVenture I, LLC, 65 AD3d 1199, 1201 [2009]).
As an initial matter, during the trial, the plaintiffs presented evidence, in the form ofa survey and the testimony of the surveyor, that the subject strip was actually on theirproperty. The Kallys presented different surveys, purportedly showing that the strip wason their property. However, the Kallys' surveys lacked probative value, since the Kallysfailed to present testimony from a land surveyor to attest to the accuracy of their surveys,or to interpret and explain them (see Seaman v Three Vil. Garden Club, Inc., 67 AD3d 889,890 [2009]; Patterson v Palmieri, 284 AD2d 852, 853 [2001]; Greenberg vManlon Realty, 43 AD2d 968, 969 [1974]). Nevertheless, we decline the plaintiffs'request that this Court conform the pleadings to the proof (see CPLR 3025 [c])and declare that the plaintiffs are the owners of the subject strip by deed. Because theplaintiffs' cause of action to compel the determination of claims to the subject strip wasbased only on adverse possession, and they never moved in the Supreme Court to amendtheir complaint, the Kallys were not on notice of the need to present proof of theirownership of the subject strip by deed. Accordingly, the Kallys would be prejudiced byso belatedly conforming the pleadings to the proof (see Kimso Apts., LLC v Gandhi, 104 AD3d 742 [2013]; Matter of Nurayah J., 41 AD3d477, 478 [2007]).
Nevertheless, we conclude that the plaintiffs demonstrated ownership to the subjectstrip through adverse possession. " 'A party seeking to obtain title by adverse possessionmust prove by clear and convincing evidence . . . that (1) the possessionwas hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4)it was exclusive; and (5) it was continuous for the statutory period of 10 years' " (Kelly v Bastianic, 93 AD3d691, 693 [2012], quoting Skyview Motel, LLC v Wald, 82 AD3d 1081, 1082[2011]; see Walling vPrzybylo, 7 NY3d 228, 232 [2006]). Additionally, since the adverse possessionclaim is not founded upon a written instrument, the plaintiffs must establish, inaccordance with the law in effect at the time this action was commenced, that thedisputed property was either "usually cultivated or improved" or "protected by asubstantial inclosure" (RPAPL former 522; see BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658[2009]; Goldschmidt v Ford St.,LLC, 58 AD3d 803, 805 [2009]).
Here, the plaintiffs demonstrated that, by building and maintaining a wall along thesubject strip, which was styled to match their house and attached to a gate attached totheir house, they continually possessed the subject strip, for more than 10 years, in amanner that was open and notorious, exclusive, and inimical to the rights of the Kallys'predecessor (see Estate ofBecker v Murtagh, 19 NY3d 75, 81-83 [2012]; Walling v Przybylo, 7NY3d at 232; Kelly v Bastianic, 93 AD3d at 693-694; Zeltser v Sacerdote, 52 AD3d824 [2008]; Gaglioti v Schneider, 272 AD2d 436, 436-437 [2000]).Contrary to the Supreme Court's conclusion, there was no indication that the wall wasbuilt with the permission of the Kallys' predecessor. The plaintiffs established that, whenthe wall was first built, the Kallys' predecessor lodged an objection to the wall with thehomeowner's association, and the plaintiffs were forced to decrease the height of the wall(cf. Goldschmidt v Ford St., LLC, 58 AD3d at 805; Koudellou v Sakalis, 29 AD3d640, 641 [2006]). It can reasonably be inferred from this evidence that the Kallys'predecessor believed the wall to be on the plaintiffs' property; otherwise, she simplycould have removed it. Finally, the plaintiffs showed that they had improved the subjectstrip of land. Accordingly, the plaintiffs demonstrated, by clear and convincing evidence,that they were the owners of the subject strip of land by adverse possession (seeWalling v Przybylo, 7 NY3d at 232; Kelly v Bastianic, 93 AD3d at693-694).
Furthermore, the evidence warranted a finding that the Kallys committed a trespasswhen they demolished the subject wall. "The elements of a cause of action sounding intrespass are an intentional entry onto the land of another without justification orpermission" (Volunteer FireAssn. of Tappan, Inc. v County of Rockland, 101 AD3d 853, 855 [2012];see Rager v McCloskey, 305 NY 75, 79 [1953]; Woodhull v Town ofRiverhead, 46 AD3d 802, 804 [2007]). "Intent is defined as intending the actwhich produces the unlawful intrusion, where the intrusion is an immediate or inevitableconsequence of that act" (Volunteer Fire Assn. of Tappan, Inc. v County ofRockland, 101 AD3d at 855, citing Phillips v Sun Oil Co., 307 NY 328, 331[1954]). In this case, the Kallys' own evidence [*3]established that they demolished the subject wall. The factthat the Kallys assumed the wall was on their property does not negate the element ofintent, since "[l]iability may attach regardless of [the Kallys'] mistaken belief that [they]had a right to enter" (State ofNew York v Johnson, 45 AD3d 1016, 1019 [2007]; see Volunteer Fire Assn. ofTappan, Inc. v County of Rockland, 101 AD3d 853 [2012]; Curwin v VerizonCommunications [LEC], 35 AD3d 645 [2006]; Burger v Singh, 28 AD3d695, 698 [2006]).
Since the subject strip was owned by the plaintiffs by adverse possession, the Kallys"[were] responsible for any damages that [they] caused to the plaintiffs' property byreason of [their] trespass" (Westv Hogan, 88 AD3d 1247, 1250 [2011], affd 19 NY3d 1073 [2012]).Based on the evidence presented regarding the cost of replacing the wall, we find that theplaintiffs are entitled to an award of compensatory damages in the sum of $7,320 (seeVolunteer Fire Assn. of Tappan, Inc., 101 AD3d at 855-857; Warm v State ofNew York, 308 AD2d 534, 536 [2003]; see also Dellaportas v County ofPutnam, 240 AD2d 358 [1997]). However, contrary to the plaintiffs' contention, anaward of punitive damages is not appropriate, since they failed to meet their burden ofestablishing that the Kallys acted with "actual malice involving intentional wrongdoing,or that [the Kallys'] conduct amounted to a wanton, willful, or reckless disregard of [theplaintiffs'] right of possession" (Litwin v Town of Huntington, 248 AD2d 361,362 [1998]; see Warm v State, 308 AD2d at 537).
Since this is, in part, a declaratory judgment action, we remit the matter to theSupreme Court, Queens County, for the entry of an appropriate amended judgment, interalia, declaring that the plaintiffs are the owners of the subject real property by adversepossession (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appealdismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Rivera, J.P.,Skelos, Leventhal and Lott, JJ., concur.