Opinion
34382/2007.
Decided August 18, 2008.
Yevegeny Tsyngauz, Esq., New York 11214 (718) 621-6600, Plaintiff's Attorney.
Robert M. Milner, Esq. Robinson Brog Leinwand Greene Genovese Gluck, P.C., New York, New York 10105 (212) 603-6300, Defendant Attorney.
Defendants, JACK MEERSAND and WENDY MEERSAND, (hereinafter "Defendants"), move this Court for an Order pursuant to CPLR § 3211 for Summary Judgment against the Plaintiff and granting further relief as this Court deems just and proper. Plaintiff cross moves seeking Summary Judgment pursuant to CPLR 3212 and dismissing the 1st and 5th affirmative defenses and Defendants 1st and 2nd counter claims; declaring Plaintiff the lawful owner of the area in dispute, and restoring Plaintiff to possession, and for such other and further relief as the Court deems just and proper.
Upon reading the Defendants' Notice of Motion for Summary Judgment, of Robert M. Milner, Esq., Attorney for Defendants, dated November 5th, 2007, together with the Affidavit in Support of Motion for Summary Judgment by Defendant JACK MEERSAND, dated October 17th, 2007, together with the Affidavit in Support of Motion for Summary Judgment by KENNETH MEERSAND, dated October 15th, 2007, together with the Affidavit by ROSLYN T. GOLDSTEIN, dated October 17th, 2007, together with the Affidavit by PHYLLIS ROSENBLUM, dated November 1st, 2007, together with the Affidavit by MILTON MARSHALL, dated October 30th, 2007, together with the Affidavit by BELLA GEER, dated October 30th, 2007, together with the Affidavit by ARTOUR KHATCHATOURIAN, dated October 15th, 2007, together with Defendants' Memorandum of Law in Support of Motion for Summary Judgment, by Robert M. Milner, Esq., Attorney for the Defendants, undated, and all exhibits annexed thereto; the Notice of Cross-Motion by Yevgeny Tsyngauz, Esq., Attorney for the Plaintiff, dated April 2nd, 2008, the Affirmation of Yevgeny Tsyngauz, Esq., dated April 2nd, 2008, together with the Affidavit of YAKOV PESOCHINSKY, dated March 31st, 2008, and all exhibits annexed thereto; the Reply Affidavit by KENNETH MEERSAND, dated April 6th, 2008, together with the Reply Affidavit by JEFFREY MEERSAND, dated April 6th, 2008, together with the Affidavit in Support of Motion for Summary Judgment, by KENNETH MEERSAND, dated October 6th, 2007, together with Defendants' Reply Memorandum of Law in Support of Motion for Summary Judgment, by Robert M. Milner, Esq., Attorney for the Defendants; the Reply Affirmation by Yevgeny Tsyngauz, Esq., Attorney for Plaintiff, dated April 9th, 2008; and after argument of counsel and due deliberation thereon, Defendants' motion for Summary Judgment is granted and Plaintiff's motion for Summary Judgment is denied for the reasons set forth below.
FACTS and ARGUMENTS
Plaintiff owns property located at 2906-12 Brighton 12th Street, a/k/a 14-26 Cass Place, Block 8711, Lot 15, in Brooklyn, NY, (hereinafter "the Plaintiff's property"). Defendants are the owner of property located at 23 Brighton 11th Street, Block 8711, Lot 14, Brooklyn, NY, (hereinafter "the Defendants' property").
Plaintiff brings this action to eject Defendants from a triangular section of lot 15, (hereinafter "the disputed area" or "the area in dispute"), which is adjacent to lot 14 and which at its widest is 5.5 ft, and runs away from Brighton 11th Street toward the rear of the lots. Plaintiff claims the area in dispute rightfully belongs to it but that Defendants have enclosed it and have taken possession of it.
Defendants move for summary judgment arguing that they have acquired the area in dispute by adverse possession, or in the alternative that they have a prescriptive easement over it.
Plaintiff contests Defendants' adverse possession claim arguing that Defendants have no claim of right to the property, that the enclosure Defendants erected is insufficient to satisfy the requirement that Defendants cultivated and improved the property, and that there is a break in the privity between successors in title, which prevents the Defendants from meeting the continuous possession requirement of ten years. Plaintiff further argues Defendants cannot prove their claims by clear and convincing evidence.
ANALYSIS
It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact which require a trial of action. Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers.
A motion for summary judgment will be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party". CPLR § 3212 (b). The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.
When considering a summary judgment motion for failure to make out a case, this Court is required to accept the Plaintiff's evidence as true and give it the benefit of "every reasonable inference which can be reasonably drawn from that evidence." Secof v. Greens Condominium, 551 NYS2d 563, {158 AD2d 591} citing, Goldstein v. Hauptman, 131 AD2d 724 (2nd Dept. 1987).
Adverse Possession
It is well established that there are five essential elements necessary to constitute an effective claim for adverse possession. Specifically, the possession must be (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the statutory period. Fitzgerald v. Conroy , 15 AD3d 534 , 790 NYS2d 526 (2d Dep't 2005). The evidentiary standard required to make out a claim for adverse possession is one of clear and convincing evidence. Id., citing RPAPL 511.
The primary issues in dispute are whether Defendants have asserted a claim of right to the area in dispute, whether Defendants had actual possession of the area in dispute, and whether privity between predecessors in interest allows Defendants to meet the ten year statutory period on each element by clear and convincing evidence.
Hostile and under a claim of right
"Possession is not the less adverse because a person takes possession of the land in question innocently and through mistake, it being the visible and adverse possession, with an intention to possess the land occupied under the belief that it is the possessor's own, that constitutes its adverse character, not the remote belief of the possessor." Bradt v Giovannone, 35 AD2d 322, 325-326). Citing Belotti v. Bickhardt, 228 NY 296, 302.
"The words adverse' and hostile' are synonymous in law." 2 NY Jur. 2d Adverse Possession § 32.
Plaintiff asserts that Kenneth Meersand's affidavit shows that Plaintiff's predecessor-in-title, and not the Defendants', erected the gate, demonstrating that Defendants' possession is not hostile. Plaintiff's argument would imply that the possession was permissive, at least initially, by the Plaintiff's predecessor in interest, and therefore cannot be seen as hostile. Plaintiff asserts that "the placement of the fence by the Plaintiff's predecessors-in-title. . . cannot support a finding that the Defendants' predecessors-in-title substantially enclosed the Area in Dispute".
In fact it is not the act of putting up the original enclosure that gives rise to a finding of hostility; the possession itself is the hostile act.
"A plaintiff is not required to show enmity or specific acts of hostility in order to establish the element of hostility for adverse possession; rather, all that is required is a showing that the possession constitutes an actual invasion of, or infringement upon, the property owner's rights." Greenberg v. Sutter, 257 AD2d 646, 684 NYS2d 571, (2nd Dept 1999). While it is unclear who built the original fence, it is clear that Defendants have substantially enclosed the area for a period of at least ten years.
Defendants do not need to show that the original fence was erected by their own predecessor in interest, or that they knew they were encroaching on an adjacent property in order for the possession to be hostile.
"[M]utual mistake concerning the location of the borderline between the properties did not negate a finding of hostile possession, for purposes of adverse possession claim." Gore v. Cambareri, 303 AD2d 551, 755 NYS2d 728 (2nd Dept. 2003).
Accordingly, whether Defendants knew that the disputed area belonged to the Plaintiff is not dispositive as to whether their possession was hostile.
Defendants have asserted a claim of right to the property by the overt act of their having possessed the property for the ten year statutory period, without having been granted permission to occupy the land. "Generally, an inference of hostile possession or claim of right will be drawn when the other elements of adverse possession are established. . .". Koudellou v. Sakalis , 29 AD3d 640 , 814 NYS2d 730, (2nd Dept. 2006).
Therefore, even had Plaintiff's predecessor in interest erected the fence, hostile possession is not defeated so long as possession continued under a claim of right. The claim of right may result from inadvertence. Id. See also Greenberg v. Sutter, 257 AD2d 646, 684 NYS2d 571, (2nd Dept 1999).
Claim of right will be defeated, however, by a grant of permission from the title holder.
Defendant Jack Meersand's father attests that neither he nor his parents, who possessed the property before him, ever asked for permission for the use of the area in dispute. Plaintiff has adduced no evidence that it or its predecessors in interest gave Defendants or their predecessors permission to occupy the disputed area.
A claim of right must be exclusive of any other, and is found where occupancy and possession are not made subservient to another.
Defendant Jack Meersand's father Kenneth attests that his family "intended to and did own and occupy the entire fenced in area to the exclusion of everyone else", and that "[i]t was, in fact, always my belief that the fenced in area was our property and part of out house. .". The area was physically enclosed so that it was accessible only to the Defendants. Defendants and their predecessors maintained and used it over three decades, from grantor to grantee. There is no evidence that Defendants and their predecessors-in-interest ever acted as if the property belonged to another party.
The fact that Plaintiff held legal title to the disputed area does not negate Defendants' occupying the area under a claim of right. "By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner." Walling v. Przbylo , 7 NY3d 228 , 2006 NY Slip Op. 04747).
Actual possession
Plaintiff also argues that the "mere presence of a fence is insufficient" to support a claim of possession. Proof of actual possession in an adverse possession claim requires that the claimant demonstrate more than simply occupying the land. "Under RPAPL 522, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was either "usually cultivated or improved" (RPAPL 522) or "protected by a substantial inclosure" (RPAPL 522)." East Hampton Livestock Corp. v. Fleming, — NYS2d —, 2008 WL 2908046, (2nd Dept 2008).
It should be noted that although Governor Patterson recently signed Senate Bill 7915-C into law in July of 2008, which alters the statutory standard for adverse possession in New York, the new legislation only applies to claims filed on or after the date the legislation was passed.
Which acts or improvements constitute actual possession varies with the situation. "The type of cultivation or improvement sufficient to satisfy the statute will vary with the character, condition, location and potential uses for the property (see, Ramapo Mfg. Co. v Mapes, 216 NY 362, NY (1915); City of Tonawanda v Ellicott Cr. Homeowners Assn., supra .
Plaintiff asserts that the erection of a chain link fence is inadequate for Defendants to meet their burden, citing RSVL Inc. V. Portillo, 16 Misc 3d 1137(A) [Sup Ct 200]. In that case, the plaintiffs notified the defendants that plaintiff intended to replace an existing fence with a new one, which was to be moved to run along what plaintiff asserted was the correct property line. There the Court held that "the mere presence of a fence is insufficient. There must be a showing that it was a substantial barrier erected by the party claiming adverse possession, without the consent of the owner." Id.
However, the Second Department has held that a fence can be sufficient to support actual possession. See Morris v. DeSantis, 178 AD2d 515, 577 NYS2d 440, N.Y.A.D.,1991 (a six foot high chain link fence); Birnbaum v. Brody, 156 AD2d 408, 548 NYS2d 691, N.Y.A.D.,1989 (a chain link fence less than three feet in height).
At bar, however, Defendants did not just erect a fence. They enclosed the area in dispute with a fence and gate, which together physically excluded all others from entering what they believed was their land. They paved the disputed area and used it as an active and private driveway.
Their exclusion of others, their maintenance of the barriers which created that exclusion and their ongoing use of the property satisfy the element of actual possession.
Continuous possession/Tacking
Defendants submit that they have been possessing the area in dispute for a period in excess of fifty years. They describe a chain of privity of ownership from the grandmother through various relatives to Defendant Jack Meersand.
The required period for continuous possession in an adverse possession claim is ten years. Walling v. Przybylo , 7 NY3d 228 , 818 NYS2d 816, (2006).
"For purposes of adverse possession the requisite continuity of possession may be shown by combining the successive possessions of several persons between whom privity exists, in a process called tacking. In other words, the use or possession by the predecessors in title, also meeting the requirements of adverse possession, may be tacked on to one's adverse use or possession to establish the statutory period, as long as there is an unbroken chain of privity between the adverse possessors. Where the successive possessions of those in privity with each other, when tacked together, constitute one continuous adverse possession for the statutory period, it will be sufficient, provided the other elements of adverse possession are also present." 2 NY Jur. 2d Adverse Possession § 58.
"The claim of adverse possession may continue unbroken by a succession of tenants, and the adverse possession may be just as effectual as though the premises were held during the whole period by one person; all that is necessary to make the adverse possession effectual being that such possession be continued by an unbroken chain of privity between the adverse possessors." Belotti v. Bickhardt, 228 NY 296, 127 N.E. 239, NY (1920).
Defendants have owned the house since 2001, when Defendant Jack Meersand's father, Kenneth Meersand, and his brother in-law, Rubin Warshowsky deeded the house to Defendants. In the years immediately prior, while Kenneth Meersand and Rubin Warshowsky owned it, it was occupied by tenants, one of whom, Artour Khatchatourian, affirmed that he lived at 67 Brighton 11th Street from 1996 through 2000.
This affidavit, together with the affidavits of both Kenneth and Jack Meersand support the fact claim that the disputed area was continuously occupied by Defendants and their predecessors in interest, thus establishing privity for the purposes of adverse possession.
Plaintiff argues that because Defendants have not produced evidence of the intent of Defendants' successors-in-interest to pass the area in dispute from one party to the other, or an easement over the same, privity does not exist between them.
However, it has long been held in New York that an adverse possessor need not include the area in dispute in the deed or other transfer documents in order for the periods of possession to be tacked.
"Successive adverse possessions of property omitted from a deed description, especially contiguous property, may be tacked if it appears that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land described in the deed." Brand v. Prince, 35 NY2d 634, 324 NE2d 314, NY (1974).
There is no question that Kenneth Meersand intentionally turned over the enclosed area in dispute to his son when he transferred the house to him.
Plaintiff submits the affidavit of Yakov Pesochinsky, a former tenant of the Plaintiff, who states that "nobody parked vehicles in Defendants' driveway. . . from the middle of 2000 to the beginning of 2001".
Pesochinsky does not state, however, that the fence and gate were taken down or that Plaintiff regained access to the disputed area. Even if one accepts as true that Defendants and their tenants did not park cars on the disputed area for a half a year, that does not negate Defendants' claim that they continued to possess the area in dispute for more than ten years, at the exclusion of all others.
"The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period." Walling v. Przybylo, 7 NY3d 228 (2006).
By failing to reclaim the land over a period of more than ten years, Plaintiff acquiesced in Defendants' ownership of the land.
"[A]lthough not a favored method of procuring title, [adverse possession] is a recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable." Belotti v. Bickhardt, 228 NY 296, 127 N.E. 239, (1920). Accordingly adverse possession must be proven by clear and convincing evidence.
"[C]lear and convincing evidence" "is a higher, more demanding standard than the preponderance standard." Rossi v. Hartford Fire Ins. Co., 103 AD2d 771, 477 NYS2d 402 (2nd Dept 1984), citing New York Pattern Jury Instructions, 1 NYPJI 1:64 [1983 Supp.]
Here Defendants have met their burden as there is no question that they and their predecessors used and occupied the disputed area and enclosed it to the exclusion of all others for at least ten years. Even accepting as true Plaintiff's claim that their predecessor in interest originally erected the fence and the Defendants did not park cars in the driveway for the latter half of the year 2000, Defendants still have demonstrated by clear and convincing evidence that they meet the requirements for a claim of adverse possession.
In their cross motion, Plaintiff seeks to dismiss Defendants' first and fifth affirmative defenses and their first and second counterclaims which essentially reiterate Defendants' adverse possession claim, and which seek a declaratory judgment that it owns the area in dispute. In addition to seeking dismissal to these claims, Plaintiff seeks a declaratory judgment in its favor that they own the disputed area.
Since Defendants have prevailed on their adverse possession claim, they are entitled to a declaratory judgment and the vacatur of the notice of pendency filed by Plaintiff.
WHEREFORE, the Plaintiff's cross motion seeking partial summary judgment and dismissing Defendants claims is denied, and the Defendants' motion for summary judgment for adverse possession is herein granted, and Defendants are granted judgment declaring that they are the owners of that part of lot 15 south of the chain link fence and the one story brick building as shown on the survey dated September 6th, 2007, prepared by Alexander Tsukerman (Plaintiff's exhibit 6, Notice of Cross-Motion dated April 2, 2008).