Opinion
2014-1534
08-12-2016
Lowell Cote and Aline Cote, Plaintiffs, v. Mary Pray and Nicole Locklin, Defendants.
For Plaintiffs: Dean C, Schneller, Esq. 14233 NY-9N Au Sable Forks, NY 12912 (518) 647-8877 For Defendants: Mary Ann Bukolt-Ryder, Esq. 61 Clinton St Plattsburgh, NY 12901 518-561-8800
For Plaintiffs: Dean C, Schneller, Esq. 14233 NY-9N Au Sable Forks, NY 12912 (518) 647-8877 For Defendants: Mary Ann Bukolt-Ryder, Esq. 61 Clinton St Plattsburgh, NY 12901 518-561-8800 Robert J. Muller, J.
Plaintiff Lowell Cote (hereinafter Cote) and his aunt, plaintiff Aline Cote, own the property located at 4916 South Catherine Street in the City of Plattsburgh, Clinton County. Defendant Mary Pray and her daughter, defendant Nicole Locklin, own the adjacent property located at 4914 South Catherine Street. Plaintiffs have an asphalt driveway which extends along the southern side of their property, parallel to defendants' property. In early 2014, defendants installed two survey pins in the front corner of this driveway and another at the rear of plaintiffs' property. Then, in September 2014, defendants installed two additional pins in plaintiffs' driveway and a flag at the end of the driveway. According to plaintiffs, the location of these pins effectively robs them of a significant portion of the driveway, as well as "several feet to the south of the . . . driveway running a straight line to the rear yard property line" [Lowell Cote Affidavit, at ¶ 2] (hereinafter the contested area). Defendants subsequently installed a shed in the contested area, as well as a wooden post to support a child's zip line. Defendants also began constructing an addition on the northerly side of their property which allegedly encroaches upon the contested area.
It appears that this addition has now been completed.
Plaintiffs commenced this action to quiet title on October 14, 2014, asserting six causes of action: (1) that they are entitled to a judgment under RPAPL article 15 declaring them to be the sole owners of the contested area; (2) that they own the contested area based upon adverse possession; (3) that they have a prescriptive easement over the contested area; (4) that they own the contested area under the theory of boundary by acquiescence, also known as the doctrine of practical location; (5) that defendants are liable for trespass; and (6) that defendants are liable for nuisance. Issue was subsequently joined with defendants asserting a counterclaim for trespass. Discovery has now been completed. Presently before the Court is plaintiffs' motion for partial summary judgment on their first, second and fourth causes of action.
Plaintiffs filed a motion by Order to Show Cause for a preliminary injunction shortly after commencing the action. The parties ultimately agreed to a preliminary injunction prohibiting defendants from installing a fence or other structure on the contested area — as well as from seeking any building permits to install new structures on the contested area — pending the conclusion of the action.
At the outset, defendants have conceded in their opposition papers "that the portion of the [contested area] that has been paved by[ p]laintiff[s'] predecessors in interest" — i.e., the asphalt driveway — has been acquired by them. Therefore, the only portion of the contested area that remains in dispute is "the green space several feet south of the driveway running in a line parallel to the driveway extending all the way to the rear of the lot.." It is unclear just how many feet south of the driveway defendants claim to own, as they repeatedly use terms such as "several" when referring to the area.
Turning now to the merits, on a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).
Insofar as the first cause of action is concerned, plaintiffs would be entitled to summary judgment under RPAPL article 15 declaring them to be the sole owners of the contested area if the Court finds — as a matter of law — that they own the area by adverse possession or, alternatively, under the doctrine of practical location. This cause of action is therefore contingent upon the Court's analysis of the second and fourth causes of action, as set forth below.
With respect to the second cause of action, to establish title by adverse possession not based on a written instrument, plaintiffs must demonstrate "by clear and convincing evidence that for a period of 10 years they actually possessed the property in dispute and that their possession was open, notorious, exclusive, continuous, hostile and under a claim of right, and that the disputed parcel was either usually cultivated and improved' or protected by a substantial inclosure'" (Goss v Trombly, 39 AD3d 1128, 1129 [2007], quoting RPAPL 522 [1], [2]; see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159-160 [1996]; Gallas v Duchesne, 268 AD2d 728, 729 [2000]).
Here, Cote has submitted an affidavit in support of the motion stating that plaintiffs' property was previously owned by his father, who purchased it in 1957. His parents then constructed the single-family home thereon and installed the asphalt driveway in 1958. Cote was born in 1964 and raised in the home, remaining there until approximately 1987 or 1988 when he moved closer to the State University of New York at Plattsburgh where he was attending graduate school. The property was then deeded to plaintiffs in 2007, with Cote's father and mother residing there until their deaths in 2010 and 2012, respectively.
It is unclear who, if anyone, resides in the home now, as both Cote and his aunt reside elsewhere in Plattsburgh.
According to Cote, his father always considered the contested area to be part of their yard. Cote states that, some time in the late 1960s, his father installed an above-ground pool in the backyard just beyond the end of the driveway for his sister, who was severely handicapped. This pool was later replaced by another above-ground pool, which was in the same location. Cote has also attached to his affidavit a photograph of his sister in front of the first pool installed and a photograph of himself in front of the second pool.
Cote further states that, in or around 1973, the owner of 4914 South Catherine Street installed a wooden picket fence around that property, which fence was located several feet to the south of the asphalt driveway. Cote has submitted several photographs of the fence, the existence of which does not appear to be disputed in any event. According to Cote, he and his parents always mowed and otherwise maintained the area on their side of the fence. The fence remained in place until 1984, at which time it was removed by Catholic Charities, which purchased 4914 South Catherine Street in 1983. With that said, Cote contends that he and his family continued to maintain the contested area following removal of the fence and in fact continued to do so until the present dispute arose.
Plaintiffs have also submitted, inter alia, the affidavit of Steven Patnode, the former office manager of Catholic Charities. Patnode states, in pertinent part: "When Catholic Charities first purchased the property at 4914 South Catherine Street, I recall that there was a white picket fence on the north side of the property. This fence ran parallel to our building and extended from the front to the back of the lot. The fence was situated within the green space some feet to the south of the Cote's asphalt driveway. The fence served as the accepted boundary line between 4914 and 4916 South Catherine Street."
Patnode further states as follows: "After [Catholic Charities] removed the fence, the Cote family continued to regularly maintain the green space that had previously existed on their side of the Catholic Charities building, garage and ramp. I specifically recall observing [them] performing this maintenance."
The Court finds that plaintiffs have demonstrated by clear and convincing evidence that for a period of 10 years they actually possessed the contested area and, further, that the possession was open, notorious, exclusive, continuous, hostile and under a claim of right. Indeed, plaintiffs have amply established their use of the contested area from the 1960s to at least 1984, when the fence was removed. Given the presence of the fence during the majority of that time, plaintiffs have further established that such use was open, notorious, exclusive and continuous. Insofar as the element of hostility is concerned, this element " will be presumed if the use is open, notorious and continuous for the full 10-year statutory period,' and may be found even where . . . plaintiff[s] possessed the property through inadvertence or mistake," as was the case here (Goss v Trombly, 39 AD3d at 1129, quoting Birkholz v Wells, 272 AD2d 665, 667 [2000]; see Fatone v Vona, 287 AD2d 854, 856-857 [2001]; Sinicropi v Town of Indian Lake, 148 AD2d 799, 800 [1989]).
Plaintiffs have also established as a matter of law that they usually cultivated and improved the contested area. The type of acts constituting the required improvement or cultivation varies " with the nature and situation of the property and the uses to which it [could] be applied' and . . . consist[s] of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners'" (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160 [1996], quoting Ramapo Mfg. Co. v. Mapes, 216 NY 362, 373 [1915]; accord Robbins v Schiff, 106 AD3d 1215, 1216 [2013]; Goss v Trombly, 39 AD3d at 1130). Here, plaintiffs have submitted ample evidence that they regularly mowed and otherwise maintained the contested area from the 1960s to at least 1984, which activities are similar to those conducted by other homeowners (see Goss v Trombly, 39 AD3d at 1130).
In opposition to the motion, defendants have submitted the Affidavit of James Warner, who was hired by Catholic Charities in 2007 to maintain its property at 4914 South Catherine Street. Warner states, in pertinent part: "My understanding was that our, that is to say Catholic Charities['], boundary went right up to the Cote's driveway, and that was where I mowed to. I also mowed behind the garage, which is still in existence all the way back to the east line and into the area directly behind the Cote's home" [Warner Affidavit, at ¶ 3]. Warner further states that Cote's father "never challenged [his] mowing up to the driveway, nor to the back yard."
Defendants have also submitted the Affidavit of Mary Pray, which attaches the minutes of a public hearing held before the Plattsburgh Zoning Board on March 17, 2014 relative to defendants' application for a variance for their addition. According to the minutes, Cote questioned "how [the] driveway [got] built 2[ feet] onto" defendants' property and later stated that "[h]is family maintained the green space over to 4919 as a courtesy." Defendants contend that such statements constitute an admission that use of the contested area was permissive, thus defeating the presumption of hostility (see McKeag v Finley, 93 AD3d 925, 927 [2012]).
Defendants have, nevertheless failed to raise a triable issue of fact relative to the second cause of action. Initially, Warner's statements focus exclusively on plaintiffs' conduct from 2007 onward and fail to address the conduct of Cote's parents from the 1960s to 1984. These statements are therefore unavailing. Cote's statements at the public hearing are similarly unavailing. The fact that he does not know how the driveway was installed 2 feet onto defendants' property is irrelevant, as is the fact that he maintained the green space over to 4919 as a courtesy. Indeed, this latter statement appears to reference Cote's actions in mowing from his family's driveway up to the side of the Catholic Charities' building as a courtesy after removal of the fence. Patnode confirms such actions in his affidavit, stating that "[a]fter [Catholic Charities] removed the fence, the Cote family continued to . . . maintain . . . the remainder of the grassy area leading up to the side of the Catholic Charities building, garage and ramp."
Based upon the foregoing plaintiffs' motion for summary judgment is granted relative to their second cause of action. Plaintiffs' motion for summary judgment is also, necessarily, granted as to their first cause of action based upon this finding that plaintiffs own the contested area by adverse possession.
Turning now to the fourth cause of action, it has been held that where "plaintiff[s] establish[ their] adverse possession claim, [the Court] need not determine whether [they] acquired title to the disputed property pursuant to the doctrine of practical location" (Estate of Becker v Murtagh, 19 NY3d 75, 84 [2012]). Accordingly, the Court declines to consider plaintiffs' motion for summary judgment on the fourth cause of action.
Therefore, having considered the Notice of Motion dated October 16, 2015 together with the Affirmation of Dean C. Schneller, Esq. dated October 16, 2015, with Exhibits "A" through "C" attached thereto, submitted in support of the motion; the Affidavit of Lowell Cote sworn to October 15, 2015 together with Exhibits "A" through "K" attached thereto, submitted in support of the motion; Affidavit of Steven Patnode sworn to October 14, 2015 submitted in support of the motion; Affidavit of Aline Cote sworn to October 13, 2015 submitted in support of the motion; Affidavit of Anita Jenkins sworn to October 15, 2015 submitted in support of the motion; Affidavit of Christian Faiella sworn to October 8, 2015 submitted in support of the motion; Affidavit of Susan Bishop sworn to October 8, 2015 submitted in support of the motion; Affidavit of Normand Cote sworn to October 13, 2015 submitted in support of the motion; the Memorandum of Law of Dean C. Schneller, Esq. dated October 15, 2015 submitted in support of the motion; the Affirmation of MaryAnne Bukolt-Ryder dated November 20, 2014(sic) submitted in opposition to the motion; Responsive Affidavit of Mary Pray sworn to November 19, 2015 together with Exhibits "A" through "I" attached thereto submitted in opposition to the motion; Responsive Affidavit of James Warner sworn to November 20, 2015 together with Exhibit "A" attached thereto submitted in opposition to the motion; the Memorandum of Law of MaryAnne Bukolt-Ryder dated November 20, 2015 submitted in opposition to the motion and oral argument having been heard on May 13, 2016 with Dean C. Schneller, Esq. appearing on behalf of plaintiffs and MaryAnne Bukolt-Ryder appearing on behalf the defendants, it is hereby
ORDERED AND ADJUDGED that plaintiffs' motion for partial summary judgment on the first and second causes of action is granted, with costs, and it is further
ORDERED AND ADJUDGED that plaintiffs' motion for partial summary judgment on the fourth cause of action is denied; and it is further
ORDERED that a hearing is scheduled for October 4, 2016 at 9:30 a.m. at the Clinton County Courthouse in Plattsburgh, NY, followed by a site inspection by the Court to determine the location and dimensions of the lands to which this judgment shall apply, and it is further
ORDERED that plaintiffs shall immediately file the trial term note of issue, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The above constitutes the Decision and Judgment of this Court.
The original of this Decision and Judgment has been filed by the Court together with the Notice of Motion dated October 16, 2015 and the submissions enumerated above. Counsel for plaintiffs is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513. Dated:August 12, 2016 Lake George, New York ROBERT J. MULLER, J.S.C.