Dickson v. Caruso

2 Citing cases

  1. Ziegler v. Serrano

    74 A.D.3d 1610 (N.Y. App. Div. 2010)   Cited 10 times
    Indicating language "on the merits" or "with prejudice" in a Rule 3216 dismissal order triggers res judicata

    With the burden shifted to defendant to set forth evidence raising a question of fact ( see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562), she submitted only a memorandum of law wherein she argued that plaintiffs cannot succeed on their adverse possession claim because her husband's conveyance of the property to them was fraudulent. However, defendant has failed to provide any evidence that plaintiffs had knowledge of the purported fraudulent conveyance at the time it was made, and a deed by one purporting to have authority to convey provides the requisite color of title to support an adverse possession claim ( see e.g. Dickson v Caruso, 31 Misc 2d 1050, 1055-1056 [Sup Ct, Broome County 1961]; Spear v De Silva, 80 NYS2d 583, 586 [Sup Ct, Delaware County 1948]). In the absence of any competent proof raising a triable issue of fact as to any of the elements of plaintiffs' adverse possession claim, summary judgment was properly awarded.

  2. Graham v. Graham

    45 Misc. 2d 298 (N.Y. Sup. Ct. 1965)   Cited 4 times

    ( Wanser v. De Nyse, 192 N.Y. 537; Howell v. Leavitt, 95 N.Y. 617; Darrow v. Calkins, 154 N.Y. 503.) The question of whether this period was changed by the addition of section 41-a of the Civil Practice Act in 1949 (now Real Property Actions and Proceedings Law, ยง 541) was raised but not determined in Dickson v. Caruso, 31 Misc.2d 1050). The court there held that adverse possession was established against the tenant in common on common-law grounds and that the section did not apply.