| Lindbergh v SHLO 54, LLC |
| 2015 NY Slip Op 03807 [128 AD3d 642] |
| May 6, 2015 |
| Appellate Division, Second Department |
[*1]
| Edith Lindbergh, Respondent, v SHLO 54,LLC, et al., Appellants. |
Jaffe, Ross & Light, LLP, New York, N.Y. (Steven R. Miller of counsel), forappellants.
In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring thatthe plaintiff acquired title to certain real property by adverse possession, the defendantsappeal (1), as limited by their brief, from so much of an order of the Supreme Court,Kings County (Velasquez, J.), dated August 22, 2012, as granted the plaintiff's motion, ineffect, for summary judgment on the first cause of action declaring that the plaintiff is theowner of certain real property by adverse possession, and denied those branches of theircross motion pursuant to CPLR 3211 (a) which were to dismiss the first cause of actionand the plaintiff's demand for punitive damages, and (2) from an order of the same courtdated August 20, 2013, which denied their motion for leave to renew their opposition tothe plaintiff's motion and to renew that branch of their cross motion pursuant to CPLR3211 (a) which was to dismiss the first cause of action, and for sanctions pursuant to 22NYCRR 130-1.1.
Ordered that the order dated August 20, 2013, is modified, on the law, by deletingthe provision thereof denying those branches of the defendants' motion which were forleave to renew their opposition to the plaintiff's motion, in effect, for summary judgmenton the first cause of action declaring that the plaintiff is the owner of certain real propertyby adverse possession, and to renew that branch of their cross motion which waspursuant to CPLR 3211 (a) to dismiss the first cause of action, and substituting therefor aprovision granting those branches of the defendants' motion, and, upon renewal, vacatingthe determinations in the order dated August 22, 2012, granting the plaintiff's motion, ineffect, for summary judgment on the first cause of action declaring that the plaintiff is theowner of certain real property by adverse possession and denying that branch of thedefendants' cross motion pursuant to CPLR 3211 (a) which was to dismiss the first causeof action, and thereupon, denying the plaintiff's motion and granting that branch of thedefendants' cross motion; as so modified, the order dated August 20, 2013, is affirmed;and it is further,
Ordered that the appeal from so much of the order dated August 22, 2012, as grantedthe plaintiff's motion, in effect, for summary judgment on the first cause of actiondeclaring that the plaintiff is the owner of certain real property by adverse possession,and denied that branch of the defendants' cross motion pursuant to CPLR 3211 (a) whichwas to dismiss the first cause of action, is dismissed as academic in light of ourdetermination of the appeal from the order dated August 20, 2013; and it isfurther,
[*2] Ordered that the order datedAugust 22, 2012, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The plaintiff owns real property (hereinafter the Lindbergh property) located at 1346East 27th Street in Brooklyn. The defendant SHLO 54, LLC (hereinafter the LLC), ownsadjacent real property (hereinafter the LLC property) located at 1350 East 27th Street.The plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 for ajudgment declaring that she acquired title to a strip of land located along the sharedboundary of the properties by adverse possession.
On January 25, 2012, prior to the defendants' answer to the complaint, the plaintiffmoved, among other things, in effect, for summary judgment on her first cause of actiondeclaring that she is the owner of the disputed real property by adverse possession. Thedefendants cross-moved pursuant to CPLR 3211 (a), inter alia, to dismiss the first causeof action. In the order appealed from dated August 22, 2012, the Supreme Court grantedthe plaintiff's motion, in effect, for summary judgment on her first cause of action anddenied the defendants' cross motion.
Thereafter, the defendants moved for leave to renew, inter alia, that branch of theircross motion pursuant to CPLR 3211 (a) which was to dismiss the first cause of action.In support of the motion, the defendants submitted a "Boundary Line Agreement" datedOctober 19, 1988, wherein the plaintiff and the LLC's predecessor in title agreed to"ratify in all respects the true boundary lines of the [LLC property] as shown on theattached copy of the survey," dated December 27, 1961. Further, the parties agreedtherein that the plaintiff "shall acquire no prescriptive rights to use or occupy any portionof the [LLC property]." In the order appealed from dated August 20, 2013, the SupremeCourt denied the defendants' motion for leave to renew.
"A motion for summary judgment may not be made before issue is joined (CPLR3212 [a]) and the requirement is strictly adhered to" (City of Rochester vChiarella, 65 NY2d 92, 101 [1985]). Accordingly, the Supreme Court should havedenied the plaintiff's motion for summary judgment, since it was made before issue wasjoined (see CPLR 3212 [a]; Gaskin v Harris, 98 AD3d 941, 942 [2012]; Shaibani v Soraya, 71 AD3d1121 [2010]; 115-41 St.Albans Holding Corp. v Estate of Harrison, 71 AD3d 653 [2010]; Alexandru v Pappas, 68 AD3d690, 691 [2009]).
A motion for leave to renew "shall be based upon new facts not offered on the priormotion that would change the prior determination" and "shall contain reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [2],[3]; see Rakha v Pinnacle BusServs., 98 AD3d 657, 657 [2012]; DeMarquez v Gallo, 94 AD3d 1039, 1040 [2012]; Matter of Choy v Mai LingLai, 91 AD3d 772, 772 [2012]). "A motion to dismiss pursuant to CPLR 3211(a) (1) will be granted only if the documentary evidence resolves all factual issues as amatter of law, and conclusively disposes of the plaintiff's claim" (Fontanetta v John Doe 1, 73AD3d 78, 83 [2010] [internal quotation marks omitted]). To establish a claim of titleto property by adverse possession, a party "must prove, by clear and convincingevidence, inter alia, that the possession was (1) hostile and under claim of right; (2)actual; (3) open and notorious; (4) exclusive; and (5) continuous for the statutory periodof 10 years" (5262 Kings Hwy.,LLC v Nadia Dev., LLC, 121 AD3d 748, 749 [2014]; see Hogan v Kelly, 86 AD3d590, 591 [2011]).
Here, the defendants provided a reasonable justification for failing to submit theBoundary Line Agreement with their initial cross motion (see CPLR 2221 [e][3]). Furthermore, the Boundary Line Agreement conclusively established that theplaintiff's alleged possession of the disputed strip of land was not hostile. Accordingly,the Supreme Court should have granted the defendants' motion for leave to renew, andupon renewal, granted that branch of the defendants' cross motion which was pursuant toCPLR 3211 (a) (1) to dismiss the first cause of action.
Contrary to the defendants' contention, the Supreme Court properly denied thatbranch of their cross motion which was to dismiss the plaintiff's demand for punitivedamages. [*3]While the defendants established that theplaintiff cannot maintain a claim for adverse possession, the plaintiff sought punitivedamages in connection with separate causes of action to recover damages for trespasswith respect to property other than the disputed strip of land, which have not beenadjudicated.
The Supreme Court providently exercised its discretion in declining to imposesanctions upon the plaintiff, as the defendants failed to demonstrate that her conduct wasfrivolous within the meaning of 22 NYCRR 130-1.1 (c) (see Kaplon-Belo Assoc., Inc. vD'Angelo, 79 AD3d 931 [2010]). Rivera, J.P., Austin, Sgroi and Barros, JJ.,concur.