Opinion
January 4, 1974
In this action for a declaratory judgment with respect to the title to certain real property situate in Westchester County, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County, dated March 5, 1973, as, upon reargument, adhered to the original determination granting a motion by defendants De Maso and St. George, as embodied in an order of the same court dated January 4, 1973 (superseded by the order granting reargument), for summary judgment dismissing the complaint as to them. Order dated March 5, 1973 reversed insofar as appealed from, with $20 costs and disbursements against respondents De Maso and St. George; motion of said defendants denied; and plaintiff is granted leave to amend his complaint to allege continuous adverse possession for the applicable period of time. The amended complaint must be served within 20 days after entry of the order to be made hereon. In our opinion, issues of fact were presented as to whether the actions of plaintiff's predecessor in title, Thomas W. Ackerly, after erecting the fence, evidenced his adverse possession of the disputed parcel of land, which therefore precluded the granting of the motion for summary judgment. Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.