Opinion
111421/2005.
Decided September 13, 2005.
"We shouldn't have to choose between a neighborhood health center and a community garden" — Sam Wilkenfeld, Chairman, Housing and Zoning Committee, Community Board 3.
Plaintiff brought this proceeding for a temporary and permanent injunction to prevent the defendants from "interfering with, impeding, impairing, hindering or obstructing the plaintiffs' access to, use or quiet enjoyment of real property designated as Block No. 373, Lot 43".
The plaintiff All the Way East Fourth St. Block Association ("Association") is a nonprofit unincorporated community organization. In 1989, plaintiff occupied, cleaned up and began to cultivate Lot 43 and two contiguous lots which run from 3rd to 4th Streets between Avenues C D on the Lower East Side of Manhattan. They renamed the lots "Orchard Alley".
The property was unimproved neglected land which had been used as a dumping ground for trash and abandoned items. The homeless had erected impromptu shacks. Finally in the Spring of 1993, the City of New York took action to address the health and safety issues by relocating the homeless. In the interim, the Association had begun cleaning up the lots and planting saplings on the property. In July of 1993, the Association applied, under "Operation Greenthumb", for a lease to all the lots. Plaintiff received approval in December, 1993 for a lease on Block 373, Lot 27 (Pltf.'s Ex. 3). The Association cultivated all of the lots and the plaintiff, in June of 1994, with the financial assistance of the defendant Ryan-NENA Community Health Center, fenced in the entire garden. It is undisputed that the plaintiffs have created a beautiful garden which has become the focal point of community activity(Deft's Ex. A).
The defendant William F. Ryan Community Health Center, Inc. ("Ryan") is the successor-in-interest to NENA Health Council Inc. ("NENA"), a dissolved corporation whose assets were transferred, by order of this court, to Ryan. Ryan is a not-for-profit community health center that provides medical care to the uninsured and the medically vulnerable at three sites in Manhattan, the Upper West Side, the Chelsea/Clinton area and the Lower East Side. It intends to use the contested site to build a low rise building with offices and apartments for mentally disabled adults.
NENA was a not-for-profit corporation that operated a health care center. In 1987, NENA's Board of Trustees transferred without consideration property including the lot at issue to the Lower East Side Housing Corp. ("LESH"). LESH was a Delaware not-for-profit corporation formed by individuals, some of whom were, at the time of LESH's formation, directors of NENA. In 1987, the New York State Attorney General brought a proceeding ( People of the State of New York ex. rel. Abrams v. NENA Health Council, New York County Supreme Court, Index No. 47434/1987) to remove NENA's board and in 1988 Ryan was appointed as receiver of NENA to pursue the recovery of property, debts and causes of action of NENA.
In 1994, NENA, by order of this court, was dissolved and all the remaining assets were transferred to Ryan ( William F. Ryan Community Health Center, Inc. v. NENA Health Council, Inc. New York County Supreme Court, Index No. 113821/1993). However, taxes had been assessed against the property and in 1999, the city sold its tax liens to NYCTL-1998 Trust, who brought an action to foreclose on the property and extinguish the claims of LESH, NENA and Ryan. NENA and LESH defaulted and Ryan obtained title to the lots in question in December of 2004, but only after satisfying the outstanding tax lien in the sum of $900,000.
Plaintiff has moved to prevent the defendants from proceeding with construction and destruction of the plantings on Lot 43. It claims title to the lot by adverse possession. The defendant has cross-moved for dismissal of the within complaint and for an order of ejectment pursuant to RPAPL § 623.
It is the court's opinion that plaintiff under the circumstances presented cannot succeed on its claim for title under the doctrine of adverse possession. Although plaintiff occupied the property for the requisite period, openly and notoriously and consistent with an ownership interest, it has done so without an initial claim of right.
This case is not dissimilar to Joseph v. Whitcombe, 279 AD2d 122 (1st Dept. 2001). The Whitcombes had moved into an abandoned house where they lived openly and notoriously for almost 20 years. Whitcombe presented the same issue as the instant case, namely "whether pursuant to the doctrine of adverse possession, mere occupancy for an extended period of years coupled with open conduct consistent with ownership, but absent an initial claim of right, may ripen into an ownership interest by virtue of the occupancy" ( Joseph, supra, 279 AD2d at 124). In Whitcombe, the court discussed the history of the doctrine, indicated how it was held in disfavor, strictly construed against the claimant and then stated that "[i]n New York, we apply the traditional rule that the possession must be `hostile and under a claim of right, actual, open and notorious, exclusive and continuous' Ray v. Beacon Hudson Mountain Corp., 88 NY2d 154, 159, quoting Brand v. Prince, 35 NY2d 634, 636,; Nazarian v. Pascale, 225 AD2d 381, 382, 638 N.Y.S.2d 661; RPAPL Art. 5" ( Joseph, supra, 279 AD2d at 125).
Moreover, Justice Tom, writing for the court, noted that the Whitcombe claim failed because:
[a]side from alleging that they had landscaped the grounds and made improvements, they failed to specify the basis of their claim of right. By thus relying on their activities after commencing occupancy, which relate rather to the adverse and hostile nature of the occupancy, defendants misunderstood the fundamental requisites of entering under a claim of right, necessarily relating to circumstances pre-dating and contemporaneous with the initial act of occupancy. Moreover, the exclusive nature of the occupancy alleged in the answer does not ripen into a claim of right existing at the time of the initial occupancy.
( Joseph, supra, 279 AD2d at 126-27) (emphasis supplied).
In the instant case, the Association did not enter the subject property under a claim of right. They sought and received a month to month tenancy under Operation Greenthumb (Pltf.'s Ex. 3). From 1981 through 1994 when the Association erected its fence, the Association sought to determine the true ownership of the lot so it might receive the consent of the owner for the erection of the fence. Plaintiff, in short, had no claim of right upon entry which could not ripen into title.
Accordingly, plaintiff's motion is denied and the cross-motion for dismissal of the complaint and for an order of ejectment is granted.
Settle order and judgment.