Opinion
January 25, 1999.
Appeal from the Supreme Court, Nassau County, (Ain, J.).
Ordered that the judgment is reversed, on the law, the order is vacated, the motion is denied, the complaint and the third-party complaint are reinstated, and the matter is remitted to the Supreme Court, Nassau County, for a new trial, with costs to abide the event.
At the conclusion of the plaintiff's case-in-chief the court granted the motion of the defendant Richard Sutter for judgment in his favor as a matter of law, based upon its conclusion that the plaintiff failed to prove a prima facie case of adverse possession. This was error.
The plaintiff made the requisite showing, by clear and convincing evidence, that her possession of the subject property was hostile and under claim of right, actual, open, notorious, exclusive, and continuous for the applicable statutory period ( see, Brand v. Prince, 35 N.Y.2d 634; Katona v. Low, 226 A.D.2d 433; Morris v. DeSantis, 178 A.D.2d 515; Manhattan School of Music v. Solow, 175 A.D.2d 106). A plaintiff is not required to show enmity or specific acts of hostility in order to establish the element of hostility ( see, Katona v. Low, supra; Kappes v. Ruscio, 170 A.D.2d 743). Rather, all that is required is a showing that the possession constitutes an actual invasion of, or infringement upon, the owner's rights ( see, Weil v. Snyder, 25 A.D.2d 605). "Consequently, hostility may be found even though the possession occurred inadvertently or by mistake, as is the likely situation here" ( Katona v. Low, supra, at 434; see, Bradt v. Giovannone, 35 A.D.2d 322). Accordingly, a new trial is warranted.
The plaintiff's claim for damages is premature at this juncture. Accordingly, we do not reach it.
Mangano, P. J., Miller, Thompson and Luciano, JJ., concur.