Opinion
Index No. 67854/2021
07-29-2022
BRONXVILLE SCOUT COMMITTEE, Plaintiff, v. THE COUNTY OF WESTCHESTER, Defendant.
Unpublished Opinion
DECISION/ORDER
DAVID S. ZUCKERMAN, JUDGE
DISPO Seq 1 Motion and Case
To commence the 30 day statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties
The papers filed in NYSCEF as Documents 1 through 34 were read in connection with this motion for summary judgment based on documentary evidence and for failure to state a claim. Plaintiff opposes the motion.
Plaintiff Bronxville Scout Committee ("BSC" or "Plaintiff") commenced this action seeking a judgment that it owned certain real property located at 1800 Midland Avenue, Bronxville, NY and known as Section 5, Block 9005, Lot 58, on the Tax Map of the City of Yonkers ("the subject premises"). The Complaint sets forth causes of action for declaratory judgment (declaring BSC's right and title to the subject property), adverse possession, and injunctive relief. Defendant moves pre-answer, pursuant to CPLR 3211(a)(1) and (7), for summary judgment based on a defense founded upon documentary evidence and failure to state a cause of action.
FACTS
In 1907, to prevent rampant pollution of the Bronx River in what is now Bronx and Southern Westchester Counties, the New York State Legislature, by statute (L. 1907, Ch. 594)("the 1907 Act"), authorized creation of a "land reservation" of property situated on either side of the Bronx River in the Borough of the Bronx (the Bronx was then a part of New York County) and Westchester County ("the reservation"). Pursuant to the 1907 Act, the reservation was to be used as a public parkway. Creation of the reservation was delegated to the Bronx Parkway Commission (the "Commission"), which was tasked with acquiring real property by, inter alia, purchase, covenant, devise, or eminent domain. Prior to acquiring any real property which would constitute a portion of the reservation, the 1907 Act required the Commission to produce a survey of the parcels which would comprise the reservation and prepare from the survey a map ("the Map"), showing the parcels sought to be acquired.
The 1907 Act mandated that the Commission file the Map in the public records of New York and Westchester Counties. It also permitted the Commission to file sections of the completed map. In or about 1914, the Commission filed a section of the Map, entitled Sheet No. 9, identifying certain parcels that it had acquired, or would be acquiring, to create part of the land reservation. Sheet No. 9, maintained in the records of the Westchester County Clerk ("County Clerk Property Records"), assigned numbers to, and identified the owners of, each parcel which had been acquired or was sought to be acquired. Sheet No. 9 identifies certain real property within the City of Yonkers (the "Yonkers Sheet No. 9 Property") and certain real property within the City of Mount Vernon (the "Mount Vernon Sheet No. 9 Property"). It also identifies the Bronx River as the boundary (then as now) between the two cities. The Yonkers Sheet No. 9 Property is shown as bordered to the west by railroad tracks, to the south and east by the Bronx River, and to the north by Midland Avenue. The Mount Vernon Sheet No. 9 Property is shown as lying to the east of the Bronx River.
Defendant County of Westchester ("the County") maintains a GIS website Municipal Tax Parcel Viewer (the "GIS Tax Parcel Viewer") which provides photographs of parcels, including the Yonkers Sheet No. 9 Property and its boundaries. The GIS Tax Parcel Viewer identifies the Yonkers Sheet No. 9 Property as a single Yonkers tax parcel, designated as Section 1.9; Block 9005; Lot 50.
Similarly, the GIS Tax Parcel Viewer photograph of the Mount Vernon Sheet No. 9 Property identifies it as a single Mount Vernon tax parcel, designated as Section 159.62; Block 1001, Lot 03. Individuals identified as Frank R. Chambers and Kate W. Chambers (the "Chambers'") owned three real property parcels within Mount Vernon which comprise the Mount Vernon Sheet No. 9 Property. Those parcels are numbered 40, 40-A, and 63 on Mount Vernon Sheet No. 9. In its Complaint, Plaintiff alleges that, prior to January 25, 1913, the Chambers' owned the subject premises and, on that date, conveyed several parcels to the Commission wherein BSC acquired an interest ("reservation of right") in the subject premises.
Parcel 63 lies partially within the neighboring Town of Eastchester.
To create the reservation, by deed dated January 25, 1913, and recorded February 1, 1913, the Chambers' conveyed parcel 40 to the Commission. By deed dated September 18, 1913, and recorded October 8, 1913, the Chambers' conveyed parcel 40-A to the Commission. Finally, by deed dated October 26, 1915 and recorded November 19, 1915, the Chambers' conveyed parcel 63 to the Commission. These deeds are contained in the County Clerk Property Records. They each convey properties shown in Mount Vernon Sheet Number 9. Yonkers Sheet No. 9 also reflects that the Commission acquired parcels 1, 3, 4, 7, 10, 19, 22, 23, 49, 50, 55, 57, and 58 by conveyance from parties other than the Chambers'. The County asserts, and Plaintiff does not contest, that there does not appear to be, from a search of the Yonkers Grantor Index in the County Clerk Property Records (the "Yonkers Grantor Index"), any deeds representing conveyances of real property by the Chambers' within the City of Yonkers to the Commission between 1907 and 1925.
Pursuant to a revised description of that real property, by deed dated October 26, 1915 and recorded November 17, 1915, the Chambers' re-conveyed parcels 40 and 40-A to the Commission.
On or about January 21, 1919, the Commission issued a permit (the "1919 Permit") to the Bronxville Troops, Boy Scouts of America (the "Bronxville Troops"), to locate a cabin ("the cabin") on the subject premises, situated on a portion of Yonkers Sheet No. 9 Property. The 1919 Permit designated the location of the cabin on the subject premises as follows:
The cabin shall be located on the southeasterly side of the mound on Bronx Parkway Commission Property to the south of Midland Avenue between the railroad tracks and the Bronx River in a location to be designated by the engineer of the Bronx Parkway Commission.
Defendant asserts, and Plaintiff does not contest, that this denotes property located on Yonkers Sheet No. 9 Property, i.e. property located wholly within the City of Yonkers. The 1919 Permit also provides that the Commission had the right to revoke the permit upon sixty days written notice and, if revoked, the Bronxville Troops were obligated to remove the cabin to a different location on the land reservation, or outside it, as the Commission designated.
At or about that time, a cabin was constructed on the subject premises. Defendant asserts, and Plaintiff does not contest, that the cabin is displayed in the GIS Tax Parcel Viewer photograph of the Yonkers Sheet No. 9 Property, just north of Cedar Avenue.
Thereafter, by statute (L. 1925, Ch. 197, dated April 1, 1925 ("the 1925 Act"), on December 31, 1925, title to all real property acquired by the Commission within Westchester County to create the reservation was transferred, in perpetuity, to the County. Defendant asserts, and Plaintiff does not contest, that the real property transfer under the 1925 Act specifically included the subject premises. The 1925 Act, like the 1907 Act, obligated the party acquiring the property (prior to the 1925 Act, the Commission, and subsequent to that Act, the County) to maintain the property for public use as a public park and parkway. The 1925 Act also provided that the County of Westchester would be
the successor of said commission as to the real estate acquired under the provisions of this act and included in the county of Westchester, and the Westchester county park commission...shall have the same rights, powers and duties with respect to the improvement and maintenance of said real estate as if the Westchester County Park Commission had originally been named in this act in the place and stead of the Bronx Parkway Commission....
Title to so much of said real estate which lies within the county of Westchester shall vest in fee in the
county of Westchester, and the county of Westchester shall thereupon take possession of the same and hold and maintain same in perpetuity at its own expense for the public use for which the same had been acquired by said commission,...as a public park and parkway and for no other purpose....
While there is no issue that the County issued the 1919 Permit to the Bronxville Troops, the County and BSC have no written agreements between them regarding the cabin and/or the surrounding property. Nonetheless, Plaintiff asserts that BSC is the successor in interest to various Boy Scout organizations which have used the subject premises since the 1919 Permit was granted. The County contests this assertion.
Defendant asserts, and Plaintiff does not contest, that BSC is a New York not-for-profit corporation, formed in 1982.
Following actions by BSC deemed inconsistent with the 1919 Permit, including, inter alia, performing construction without a permit and posting private property signs, by letter dated June 3, 2020, the County notified BSC that it owned the subject premises and that BSC was only a licensee. Defendant added that BSC's actions impinged on the County's rights as owner and interfered with and/or damaged other areas outside of the subject premises. The County demanded, inter alia, that BSC remove the previously-placed private property signs and schedule fire and safety inspections.
In a letter dated June 16, 2020, BSC claimed that it owned the subject premises, having acquired title by conveyance from Frank Chambers to the County in which a reservation of rights to the Boy Scouts was retained. Thereafter, Plaintiff commenced the instant action.
CONTENTIONS OF THE PARTIES
In its motion, the County argues that, pursuant to CPLR 3211(a)(1) and (7), the Complaint must be dismissed on the grounds of a defense founded upon documentary evidence and for failure to state a cause of action. In its Complaint, BSC asserts that it acquired title to the subject premises, located within the City of Yonkers, by way of a 1913 deed from the Chambers'.
The County responds that, while the subject premises is located entirely within the City of Yonkers, the land records maintained by the Westchester County Clerk show that all of the Chambers' conveyances relate to property within Mount Vernon. Moreover, there are no deeds or other conveyances to BSC or any intervening scouting organization, including the Bronxville Troops. There also are no conveyances which contain a reservation of rights in favor of BSC or the Bronxville Troops. Defendant adds that there are likewise no Chambers' conveyances at all regarding any Yonkers properties (where the subject premises are located) and certainly none which contain a reservation of rights in favor of the Bronxville Troops. Defendant specifically cites the Yonkers Grantor Index from 1907 through 1925 which contains no Chambers property transfers. Summarizing, in its Affirmation in Support of Motion to Dismiss, the County asserts that "[a] search of the land records evidences no deeds or any other conveyance to the BSC or the Bronxville Troops, and the County has no such records in its possession, nor any information as to same."
Defendant further argues that the County has no records, and Plaintiff has not produced any documentation, which support BSC's assertion that it possessed ownership or any other rights in the subject premises. In fact, the County argues, a review of all of the deeds conveying any parcel at or near the subject premises on Yonkers Sheet No. 9 shows that none of them retained any rights, ownership or otherwise, in favor of the Bronxville Troops or similar entity. Finally, the County asserts that the County Clerk's land records contain no conveyance from the Commission to the County retaining a reservation of rights to the Bronxville Troops or similar entity and that the County likewise has no records in its possession which support BSC's assertion of such a conveyance. Rather, Defendant asserts, every relevant conveyance--even those conveyances regarding Mount Vernon Sheet No. 9 properties--was made without any reservation of rights. Thus, the County argues, dismissal of the First and Third Causes of Action is required.
The County concedes the existence of the 1919 License in favor of the Bronxville Troops.
Defendant also urges the court to dismiss the instant action for Plaintiff's failure to state a cause of action. Specifically, Defendant argues that Plaintiff asserts ownership rights over the subject premises by a conveyance to it, or to an alleged predecessor in interest. As Defendant properly argues, however, Plaintiff has failed to demonstrate that either it, or a predecessor in interest, was the recipient of title to the subject premises. Nor does Plaintiff show how any party, including the Bronxville Troops, is their predecessor in interest. Defendant asserts, and Plaintiff does not contest, that Plaintiff was only formed by incorporation as a not-for-profit entity in 1982. Thus, BSC could not personally be the recipient of a grant of title earlier than that date (despite its assertion in motion papers that it was). Defendant further argues that, even if the Bronxville Troops had acquired some interest in the subject premises, Plaintiff cannot claim rights as a successor in interest because it has not established a succession interest.
Finally, Defendant moves to dismiss Plaintiff's adverse possession claim. Defendant argues that one cannot adversely possess property which is held by a municipality in its governmental capacity. In support, Defendant argues that the 1907 Act specified that the Commission would hold all acquired property as parkland and for parkway purposes. The 1925 Act dictated that the land acquired from the commission was to be held by the County for the same purposes. Since the property was and is held by the County as parkland and, thus, in its governmental capacity, Plaintiff can not take it by adverse possession. Secondly, Defendant argues, and Plaintiff does not contest, that one cannot adversely possess property alienation of which is barred by statute. As noted above, the property acquired by the Commission pursuant to the 1907 Act was transferred to the County pursuant to the 1925 Act in perpetuity. Thus, Defendant argues, alienation of the subject premises was barred by statute and Plaintiff can not take it by adverse possession. Thus, the second cause of action, argues Defendant, must be dismissed as well.
Plaintiff argues that it owns and/or has had conveyed to it, and/or predecessors in interest, the right to occupy and use the subject premises. Plaintiff asserts, although it does not demonstrate, that in or about 1913, Plaintiff's predecessor in interest owned, and/or occupied, the subject premises. Plaintiff further asserts that, in or about 1918, BSC and/or its predecessor in interest constructed a cabin on the subject premises without consent from any party - including the Commission. Plaintiff adds that, in or about 1938, this cabin was replaced by a larger cabin and, in or about 1984, was increased in size, all without consent from any party including Defendant. Plaintiff also asserts, but does not demonstrate, that, in or about 1965, the Bronx Valley Council, Boy Scouts of America, owned and occupied the subject premises. In or about that year, the latter entity changed its name to the Siwanoy Bronx Valley Council of the Boy Scouts and, in or about June 1981, conveyed its interest in the subject premises to Plaintiff.
Plaintiff first asserts, but does not demonstrate, ownership by its predecessor in interest. Thereafter, Plaintiff asserts, but also does not demonstrate, that its predecessor in interest merely possessed the property, identifying the predecessor organization as the Bronx Valley Council, Boy Scouts of America.
Plaintiff does not explain how such transfer of interest to BSC took place before it was legally formed.
Plaintiff argues, in opposition to the motion, that its documentary evidence supports BSC's claim of title to the subject premises. It first cites a 1995 letter from the County Commissioner of Parks and Recreation who writes that "the scouts "will continue to have access to this facility [the subject premises] as required." BSC asserts that this correspondence shows that the County recognized Plaintiff's right to use and enjoy the subject premises and implies the existence of a document granting such use and enjoyment. The correspondence also provides "all Westchester County residents are to be given access to these facilities on a permitted basis" and that casual access for nearby residents "may not be prohibited."
Plaintiff cites a set of three inter-municipal agreements, from 1977, 1979, and 2005, between the County and Yonkers, Bronxville, and Mount Vernon ("the agreements"). The agreements grant the latter parties use of a portion of the surrounding area (dedicated as parkland) but excludes the subject premises. Plaintiff asserts that the agreements show that the subject premises is not parkland and, thus, was held by the County for a proprietary use. In addition, Plaintiff asserts that the agreements show that the County had a legal obligation to exclude the property from any grant or agreement, thus demonstrating BSC's legal interest in the subject premises.
While Plaintiff also argues that Defendant cannot rely on the proffered GIS maps to describe the subject premises, the court notes that Plaintiff offered one of the same maps as evidence of the bounds of the subject premises in support of its Summons and Complaint. Defendant contends that these maps clearly show the subject premises in the City of Yonkers, on or near parcels 1, 51, 52, 53, and 54 on Sheet #9. Defendant asserts that there are no deeds in the records of the Westchester County Clerk reflecting that the Chambers' or anyone else conveyed these parcels to Plaintiff or its alleged predecessors in interest. Nor are there any documents showing that the property was conveyed to the Commission with a reservation of right to Plaintiff. Similarly, the County Clerk records do not contain any deeds reflecting a transfer from the Commission to the County with a reservation of right to Plaintiff. BSC responds that, since New York is a "racenotice" state, and that filing of deeds is only required to protect priority, the absence of a deed is not dispositive of a lack of transfer of the property. Nonetheless, Plaintiff has not produced any deed(s) or other conveyance related documentation to support its claim.
AS noted above, Defendant also points out that, in spite of Plaintiff's argument that the Chambers' conveyed the subject premise, there are no conveyances from the Chambers' in the City of Yonkers (which is where the subject premises is located) at all.
Plaintiff also argues that Defendant has failed to provide a deed conveying the subject premises to the County. The County responds that all conveyances to the County were by operation of law.
With respect to Defendants' motion to dismiss the adverse possession claim, Plaintiff argues that the County failed to comply with the terms of the 1907 and 1925 Acts by not using the property as a public park or parkway. Thus, the County used the subject property for a proprietary purpose which renders it alienable by adverse possession. In support, Plaintiff offers what it asserts is documentary evidence of its ownership or other right in the subject premises. Plaintiff submits a 1953 letter from the then-County Attorney addressing a request by "the Bronx Valley Council, Inc., of the Boy Scouts of America" for "release" of certain property. Plaintiff argues that language in the letter, describing the property as "twelve (12) of the twenty-six (26) acres in question," counters Defendant's assertion that the land was used as parkland. In Reply, Defendant argues that the 1953 letter does not clearly reference which 12 acres is dedicated for parkland use. Indeed, the letter does not identify which portion of the 26 acres is not parkland. Thus, it does not pertain to the subject premises. Moreover, the 1953 letter cannot refer to the subject parcel because it measures 9.58 acres.
Finally, Plaintiff points to the agreements as well as a 1995 letter from a former County Parks Commissioner to show that BSC owned or had a right to use and occupy the subject premises and that the subject premises is not parkland. Defendant counters that the 1995 letter references access to, and use of, the subject premises. It does not reference any ownership interest by Plaintiff.
Overall, the County counters that the subject premises has indeed been used for a public purpose. It argues that, even assuming the truth of Plaintiff's assertions, allowing scouting organizations no-cost access to the cabin is a public use of public park land - not a proprietary use. In any event, the County asserts that the issue is irrelevant because one cannot take by adverse possession property that is inalienable by statute. Since ownership of the subject premises (like all of the properties constituting the Bronx River reservation created by the 1907 and 1925 Acts) is inalienable, Plaintiff cannot take it by adverse possession.
DISCUSSION
A. DISMISSAL BASED ON DOCUMENTARY EVIDENCE
Pursuant to CPLR §3211(a)(1), "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that a defense is founded upon documentary evidence." As the Court of Appeals has held, dismissal is warranted "if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 N.Y.2d 83, 88 [1994]; see Ellington v EM/ Music, Inc., 24 N.Y.3d 239 [2014]). On a motion to dismiss pursuant to CPLR §3211(a)(1), the defendant has the burden of showing that the relied-upon documentary evidence "resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Scadura v Robillard, 256 A.D.2d 567, 567 [2d Dept 1998]). The pleadings must be liberally construed, (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc., 37 N.Y.3d 169 [2021]), and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, supra, at 87-88). On -the other hand, "the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts" (Robinson v Robinson, 303 A.D.2d 234, 235 [1st Dept 2003])
For dismissal, the proffered documents must utterly refute the allegations in the complaint, "conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. Of NY, 98 N.Y.2d 314, 326 [2002]). In order for evidence to qualify as "documentary," it must be unambiguous, authentic, and "essentially undeniable" (Dixon v 105 W 75th St., LLC, 148 A.D.3d 623, 629 [1st Dept 2017], citing Fontanetta v John Doe 1, 73 A.D.3d 78 [2d Dept 2010]). "[J]udicial records, as well as documents reflecting out-of-court transactions such, as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" (Fontanetta at 84-85).
The Causes of Action for Declaratory Judgment and an Injunction
In support of its motion, Defendant submits what it asserts is documentary evidence that conclusively establishes that BSC never acquired any interest, ownership or otherwise, in the subject premises. Defendant claims that the documentary evidence also establishes that, contrary to Plaintiff's claims, the subject premises were not conveyed to the Commission with a reservation of rights in favor of BSC. The County adds that there is a complete absence of any documentation supporting Plaintiff's claim that the Chambers' conveyed the subject premises directly to BSC (or an alleged predecessor in interest) or to the Commission with a reservation of right to BSC (or an alleged predecessor in interest). In fact, there is no evidence that the Chambers' conveyed the subject premises to anyone. Thus, Plaintiff cannot prevail on its causes of action for declaratory judgment and/or injunction.
It is uncontested that the subject premises lies within the City of Yonkers. The documentary evidence offered by Defendant establishes that, between the years 1907 and 1925, the Chambers' conveyed no property that lied within the City of Yonkers to anyone, including the Commission and/or BSC (or an alleged predecessor in interest). This evidence conclusively refutes Plaintiff's claim that the Chambers' conveyed the subject premises directly to it, a predecessor in interest, or to the Commission with a reservation of rights to Bronxville Troops, BSC or an alleged predecessor in interest.
Defendant also submits all of the Chambers' conveyances to the Commission, as well as conveyances by other grantors to the Commission, to show that, even where conveyances were of properties outside the City of Yonkers (in these cases, directly to the Commission), none contained a reservation of rights to BSC (or an alleged predecessor in interest). Lastly, the County offers the 1919 License, in which the Commission clearly offers a license to the Bronxville Troops to build on and use the subject premises for scouting purposes. Defendant has thus established, through affidavit and documentary evidence, prima facie, entitlement to dismissal of the causes of action for declaratory judgment as to Plaintiff's right and title to the subject premises and injunctive relief.
Ironically, in opposition to the motion, Plaintiff submits the Affidavit of Dr. Howard Rakoff, President of the Bronxville Scout Committee. Dr. Rakov avers that "there has never been a written or verbal agreement between BSC and Defendant that governs BSC's possession, occupancy and use of the subject property for the past one hundred (100) years."
Plaintiff disputes the claimed absence of recorded conveyances from the Chambers' or others containing a reservation of rights to BSC (or an alleged predecessor in interest) by simply arguing that such conveyances must exist even though they have not been located. Even though it is undisputed that the subject premises lies within the City of Yonkers, Plaintiff also argues that Defendant should have produced deeds from municipalities other than the City of Yonkers. In addition, Plaintiff argues that a 1995 letter and the agreements imply BSC's ownership or other rights over the subject premises. These documents, however, only refer to permissive use of the premises.
Finally, Plaintiff argues that the court should not consider the 1919 Permit because it does not appear to be signed; only the printed names of the parties' representatives appear at the end of the document. As Defendant properly notes, however, the legend "(Signed)" appears adjacent to each party's printed name. Almost a century ago, the Court of Appeals held that "a printed name ... will be treated as a signature" (Mesibov, Glinert & Levy, Inc. v Cohen Bros. Mfg. Co., Inc., 245 NY 305 [1927]). In addition, "[t]he statute of frauds does not require a formal signature" (Jafari v Wally Findlay Galleries, 1989 WL 116437 [SD NY, Sept. 26, 1989, No. 89 CIV 2390 (RWS]). Statutorily, Section 46 of the General Construction Law provides:
The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.
While the issue of whether a party intended that the printed name be used as a signature can sometimes be a question of fact (Mesibov, at 311), the complete absence of evidence that there has ever been any dispute regarding the 1919 Permit compels the court to find, as a matter of law, that the printed names constituted signatures of the representatives of the Commission and the Bronxville Troops. Plaintiff's argument that the 1919 Permit is void for lack of signatures is rejected. The valid 1919 Permit clearly establishes that neither BSC nor its alleged predecessors ever owned the subject premises.
Plaintiff's contrary argument that the 1919 Permit evinces BSC's ownership interest in the subject premises is belied by that document's reference to "the Bronxville Troops of the Boy Scouts of America." Other than some vague conclusory language, Plaintiff never establishes that it is a successor in interest to the Bronxville Troops of the Boy Scouts of America. Certainly, it has not submitted any evidence to that effect.
In sum, Defendant has established entitlement to dismissal of Plaintiff's causes of action for declaratory judgement and injunction on the ground that it has "a defense founded upon documentary evidence" CPLR 3211(a)(1). The County has produced documents showing numerous conveyances to the Commission, including those from the Chambers' - the party named by BSC as its grantor, none of which show a conveyance directly to, or include a reservation of rights to, BSC or an alleged predecessor in interest. In addition, the 1919 Permit clearly establishes that neither the Bronxville Troops, BSC, nor any alleged predecessor in interest ever owned the subject premises. Plaintiff's submissions fail to discredit the County's documentary evidence. Nor do they support BSC's claim of a conveyance granting it ownership or other rights in the subject premises. Therefore, Defendant's motion to dismiss the causes of action for declaratory judgment and injunction must be granted.
The Cause of Action for Adverse Possession
Defendant likewise moves for dismissal of the Complaint insofar as it asserts a claim for adverse possession of the subject premises. In support, the County offers documentary evidence which establishes that the subject premises are owned by a municipality. A municipality cannot lose, through adverse possession, title to property that it owns in its governmental capacity. (Gallo v City of New York, 51 A.D.3d 630 [2d Dept 2008]; Kings Park Yacht Club, Inc. v State of New York, 26 A.D.3d 357 [2d Dept 2006]).
Plaintiff argues that its adverse possession claim should survive because the County held the subject property "in its proprietary capacity" (Mazzei v Metropolitan Trans. Auth., 164 A.D.3d 1227, 1228 [2d Dept 2018]). In support, Plaintiff cites the provisions of the 1919 Permit which authorize the Bronxville Troops to build a cabin on the subject premises and keep it "and the grounds surrounding it in good condition" as evidence that the County has not maintained the property "as a public park or parkland" (the 1925 Act). This argument has no merit.
Ironically, in the context of challenging Defendant's documentary evidence showing Plaintiff never owned the subject property, BSC argued that the 1919 Permit should not be considered because it was not signed.
Pursuant to the 1925 Act, the County took possession in its governmental capacity to use the land for parkland and parkway purposes. That legislation also provided that the County
shall have the same rights, powers and duties with respect to the improvement and maintenance of said real estate as if the Westchester County Park Commission had originally been named in this act in the place and stead of the Bronx Parkway Commission....
Pursuant to this statutory provision, the County was obligated to honor the obligations of the Commission as set forth in the preexisting 1919 Permit. Thus, permitting the Bronxville Troops to use the cabin, as mandated by the 1919 Permit, could not violate the statute or create a proprietary use in violation of the 1925 Act. In any event, permitting a scouting organization no-cost use of a cabin on park land is not a proprietary use of the property. Indeed, when BSC attempted to exclude the public by erecting "private property" signs, the County directed BSC to remove them.
In any event, even if the property were not exempt from adverse possession because it is owned by a municipality, Defendant's documentary evidence establishes, and Plaintiff does not dispute, that the legislation which caused conveyance of the subject premises mandates that the property was thereafter inalienable. That statute, the 1925 Act, clearly provides
Title to so much of said real estate which lies within the county of Westchester shall vest in fee in the county of Westchester, and the county of Westchester shall thereupon take possession of the same and hold and maintain same in perpetuity at its own expense for the public use for which the same had been acquired by said commission, as a public park and parkway and for no other purpose...(emphasis added).
Property which has been made inalienable by statute cannot be taken by adverse possession. (Vaccaro v Town of Islip, 181 A.D.3d 751 [2d Dept 2020]; Casini v Sea Gate Association, 262 A.D.2d 593 [2d Dept 1999]; In re New York, 72 A.D.2d 745 [2d Dept 1979]). This is true even if the property is used for a proprietary purpose. (City of New York v Nilson & Co., 278 NY 86 [1938]; In re College Point Industrial Park, Urban Renewal, Project II, New York City v City of New York, 72 A.D.2d 745 [2d Dept 1979]). Consequently, the submitted documentary evidence establishes that BSC cannot take the subject premises by adverse possession.
Finally, notwithstanding the clear inalienability of the subject premises, the adverse possession did not commence, if at all, until the County sent the June 3, 2020 correspondence. In Hinkley v State of New York, 234 NY 309, 316 [1922], the Court held that "when the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner" (see also Bratone v Conforti-Brown, 79 A.D.3d 955 [2d Dept 2010]). Thus, the adverse possession did not commence until, at earliest, June 3, 2020. "To establish a claim of adverse possession, the occupation of the property must be... continuous from the statutory period (at least 10 years)" (Estate of Becher v Murtagh, 19 N.Y.3d 75, 81 [2012]; see also Air Stream Corp, v 3300 Lawson Corp., 99 A.D.3d 822 [2d Dept 2012]). Clearly, ten years has not elapsed since the June 3, 2020 letter. Thus, Plaintiff cannot maintain an action for adverse possession.
In sum, the County has established by documentary evidence its defense to Plaintiff's cause of action for adverse possession. Therefore, Defendant's motion to dismiss the cause of action for adverse possession must be granted.
B. DISMISSAL FOR FAILURE TO STATE A CAUSE OF ACTION
Defendant also moved to dismiss the Complaint for failure to state a cause of action. In light of the court's determination that it must grant Plaintiff's motion to dismiss based on a defense founded on documentary evidence, the motion, insofar as it seeks dismissal based on failure to state a cause of action, is denied as moot.
Upon the foregoing papers, Defendant's motion to dismiss the Complaint is granted. Accordingly, it is
ORDERED that the action is dismissed.
The foregoing constitutes the Opinion, Decision & Order of the Court.