Opinion
2001-05570
Argued January 17, 2003.
February 18, 2003.
In an action, inter alia, for a judgment declaring that the plaintiff has acquired title to the subject premises by adverse possession, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Beldock, J.H.O.), dated April 16, 2001, as, after a nonjury trial, dismissed the complaint in its entirety.
Robert Katz, Bayside, N.Y., appellant pro se.
David A. Kaminsky, P.C., New York, N.Y., for respondent.
Before: ANITA R. FLORIO, J.P., WILLIAM D. FRIEDMANN, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is modified by adding a provision thereto declaring that the plaintiff has not acquired title to the subject apartment by adverse possession; as so modified, the judgment is affirmed insofar as appealed from, with costs.
It is well settled that a party seeking to obtain title to real property by adverse possession not based upon a written instrument must demonstrate, by clear and convincing evidence, that the possession of the property was (1) hostile under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (see RPAPL 521, 522; see also Brand v. Prince, 35 N.Y.2d 634; Gerlach v. Russo Realty Corp., 264 A.D.2d 756; MAG Assocs. v. SDR Realty, 247 A.D.2d 516). The Supreme Court correctly found that the plaintiff failed to meet these requirements or to establish them by a fair preponderance of the credible evidence. The plaintiff's actions from the time he became a tenant until he commenced this action were consistent with those of a tenant and not those of a person making a claim to ownership by virtue of adverse possession.
It is further noted that the plaintiff's reliance on RPAPL 531 is misplaced. That statute states that when a tenancy is terminated, a claim for adverse possession can begin to accrue. Here, the tenancy never terminated; the plaintiff even stated at trial that he is still a rent-controlled tenant. In addition, the plaintiff acquiesced to the ownership of the premises by the landlord by failing to oppose the landlord's right to collect increased rent, as a result of having provided essential services, and therefore, the required element of hostility under claim of right was not demonstrated (see MAG Assocs. v. SDR Realty, supra).
The plaintiff's remaining contentions are without merit.
We note that since this is, in part, a declaratory judgment action, the Supreme Court should have made a declaration in favor of the respondents rather than dismissal of the complaint (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
FLORIO, J.P., FRIEDMANN, COZIER and MASTRO, JJ., concur.