Opinion
Argued October 17, 1996
Decided November 26, 1996
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered February 5, 1996, which affirmed an order of the Supreme Court (Michael H. Feinberg, J.), entered in Kings County, granting a motion by defendant Blima Homes, Inc. for summary judgment dismissing the complaint insofar as it is asserted against it, and denying a motion by plaintiffs for partial summary judgment on their third cause of action seeking title by adverse possession to a strip of real property.
In an action for damages based upon breach of contract and fraud, plaintiffs sought partial summary judgment awarding them title by adverse possession to land owned by defendant Blima Homes, Inc. Plaintiffs alleged that the prior owners of the premises and their predecessors in title had erected upon the disputed parcel a fence; that the disputed parcel enclosed by the fence adjoined plaintiffs' property and was open to it; that plaintiffs' predecessors in title used the disputed parcel for 70 years as a walkway; that plaintiffs have cultivated the enclosed, disputed parcel from the time they took possession of their property in 1977; and that title to the disputed parcel had already vested in plaintiffs' predecessors in title when plaintiffs took title in 1977.
The Appellate Division noted that the record demonstrated that in 1977 the plaintiffs expressed a desire to purchase the neighboring parcel which contained the disputed strip of land, and that in 1982 the plaintiff Concetta Guariglia executed a contract with the defendant Carmelo Bertuna regarding the purchase of the parcel at auction, and that the contract between Concetta Guariglia and Carmelo Bertuna included a provision that although title to the parcel would be under the name of only Carmelo Bertuna for a period of two years (at which time the contested strip would be transferred to Concetta Guariglia), the plaintiffs had permission to enter upon and to use the contested strip of land during that time, and concluded that plaintiffs' proof was insufficient to sustain a prima facie case that their possession was hostile and under a claim of right to establish title by adverse possession.
Joseph P. Grancio, Brooklyn, for appellants.
Newman Berger, New York City (Marc Z. Newman of counsel), for respondent.
Guariglia v Blima Homes, 224 A.D.2d 388, affirmed.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Plaintiffs sought to establish legal title by adverse possession to an enclosed 10 feet by 40 feet strip of the parcel adjoining their property (acquired in 1977) on its westerly border. Defendant Blima Homes, Inc., the record holder of legal title to the entire adjoining parcel since 1984, and its predecessors in title, are presumed to have been possessed of the disputed strip, and plaintiffs' occupancy is presumed to have been subordinate, not hostile, to legal title (RPAPL 311; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 A.D.2d 118, 120, appeal dismissed 58 N.Y.2d 824).
Moreover, the October 28, 1982 agreement entered into by plaintiff Concetta Guariglia regarding acquisition of the westerly adjoining parcel (now owned by Blima) from the State of New York and plaintiffs' permissive use of the strip in question thereafter, constituted an acknowledgement that actual ownership rested in others. The agreement thus negated an essential element of plaintiffs' adverse possession claim arising out of their occupancy of a portion of Blima's parcel during the statutory period ( Van Gorder v Masterplanned, Inc., 78 N.Y.2d 1106, 1108; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra, at 123). While the fatal effect of this acknowledgement upon plaintiffs' claim could have been overcome by establishing that plaintiffs' predecessors in interest to their property had adversely possessed the strip for the statutory period ( see, Di Leo v Pecksto Holding Corp., 304 N.Y. 505, 514; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra, at 124), plaintiffs failed to submit proof in admissible form to substantiate that contention. Thus, summary judgment dismissing their cause of action against Blima was properly granted.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
Order affirmed, with costs, in a memorandum.