Opinion
34954/06.
Decided October 10, 2007.
Michael A Calano, Esq., Calano Culhane, LLP, White Plains NY, Plaintiff.
Mark E. Klein, Esq., Ingram Yuzek Gainen Carroll Bertolotti, LLP, NY, NY, Defendant.
In this action to obtain title to a parcel of land from defendant Metropolitan Transportation Authority (MTA) by adverse possession, the plaintiffs, who are husband and wife, seek a preliminary injunction, pursuant to CPLR §§ 6301 and 6311, to enjoin the MTA from: entering onto the premises in question (Block 7212, Lots 50 and 52) in Kings County; removing from the premises structures erected by plaintiffs and personal property of plaintiffs; and transferring title to the premises during the pendency of this action. Defendant MTA cross-moves, pursuant to CPLR Rule 3212, for summary judgment to dismiss plaintiffs' adverse possession action on the grounds that it is both factually and legally baseless, and striking plaintiffs' November 13, 2006 notice of pendency against the premises.
The Court, for the reasons that follow, grants plaintiffs' order to show cause and denies defendant's motion for summary judgment and dismissal of plaintiffs' notice of pendency against the premises in question. It is undisputed that the premises in question has not been used for any transportation purpose whatsoever for decades. Government property that is used for a "proprietary" purpose, as distinguished from a "governmental" purpose, is not immune to an adverse possession claim. Plaintiffs have a viable adverse possession claim under applicable statutes and case law. Therefore, to prevent irreparable harm to plaintiffs, with plaintiffs having a likelihood of success on the merits, and the equities balancing in their favor, the Court must grant injunctive relief to plaintiffs and deny summary judgment to defendant.
Background
Mr. Ng, in his affidavit in support of his order to show cause, states that he and his wife purchased the property at 9 Dank Court (Block 7217, Lot 90), Brooklyn, New York, in April 1986. Dank Court is a one block street in the Gravesend section of Brooklyn, between West 3rd Street and Shell Road (an extension of McDonald Avenue). To further place the area in its geographic context, Avenue Y is to the north and Avenue Z is to the south. The MTA's Coney Island trainyard for the "B" Division (the old BMT and IND) is across Shell Road. The Ng and Wu house is located on a trapezoid-shaped lot, with two parallel borders approximately 100 feet in length, and approximately 27 feet in the front and 70 feet in the rear. Adjacent to their property are the two parcels of land in question (Block 7212, Lots 50 and 52), shaped like a quadrilateral, approximately 201 feet in depth on the west adjacent to Shell Road, and 204 feet in depth on the east (about 100 feet of which borders plaintiffs' property), and about 74 feet fronting on Dank Court on the south, and 61 feet fronting on Cobek Court on the north [exhibit A of order to show cause — Tax Map for Block 7212].
Mr. Ng, in his affidavit in support of the order to show cause, claims that since he and his wife purchased their home, they used the vacant land in Lots 50 and 52 "continuous and uninterrupted to the present time [p. 3 of Ng affidavit]." Further, Mr. Ng states that each year since the spring of 1989 he and his wife plant vegetables, flowers and shrubs in the lots in question, and from spring to late fall each year they are in the premises in question gardening and relaxing. They have erected and maintained a chain link fence and gate around the property. They built a small shed on the property to store gardening tools and equipment, including a lawn mower. Mr. Ng notes that only he and his wife have used the property since the late 1980's. At p. 4 of his affidavit, he states, "Our use of the property was always during daylight hours and, therefore, open for anyone could [sic] observe. Both the shed and the chain link fence have been in place continuously for well more than ten (10) years." Photos attached to plaintiffs' order to show cause, in exhibits C and D, suggest that there is a fence across the lots, from east to west in the middle of the lots, and plaintiffs have only enclosed the southern halves of the lots.
Additionally, Mr. Ng claims to have cleaned the sidewalk adjacent to the property on Shell Road. In exhibits F, G, and H attached to plaintiffs' order to show cause, plaintiffs present copies of several summonses issued to Mr. Ng for dirty sidewalks at the property. Exhibit I is a copy of Mr. Ng's $100.00 check, dated October 24, 2006, to the "Finance Commissioner, City of New York," for an October 4, 2006-summons issued to him for violation of New York City Administrative Code § 16-118 (2), for a dirty sidewalk at the corner of "Dank Ct-Shell Rd." The Sanitation supervisor who issued the summons claimed to have observed various form of litter "scattered about and accumulated at fence line and on sidewalk."
Mr. Ng states that the MTA recently appeared at the property and attempted to enter it with construction equipment and "to remove our personal property and structures which my wife and I had erected on it [p. 5 of Ng affidavit in support of order to show cause]." Plaintiffs called the New York City Police Department. The police prevented the MTA from entering the property. Plaintiffs then commenced this lawsuit to gain title to the property in question by adverse possession. Defendant MTA, in opposition to plaintiffs' order to show cause and in support of its cross-motion for summary judgment, argues that the property in question is owned by the South Brooklyn Railway Company (SBRC), a public entity, and managed for SBRC by the MTA's Real Estate Department. Bettina Quintas, Assistant General Counsel of the New York City Transit Authority ("TA"-an MTA subsidiary) and also the Secretary of SBRC, in her affidavit in opposition to plaintiffs' order to show cause and in support of defendant's cross-motion, claims that an April 2004 title report prepared for a prospective purchaser, "26 Cobeck Court, LLC," demonstrates that SBRC, not the MTA owns the property [exhibit I of cross-motion]. However, the title report, prepared by Professional Land Services, LLC, as agent for Washington Title Insurance Company, states on the first page "Owner: NYC Transit Authority." An April 15, 2004 survey by Charles F. Inguilli, Jr., Professional Land Surveyor, and his survey reading, part of the title report, show that the property is fenced in with a gate, and has a shed as described by Mr. Ng.
Ms. Quintas explains that SBRC was originally incorporated in 1900, and pursuant to a May 31, 1940 Agreement [exhibit J of cross-motion] between SBRC and the New York City Board of Transportation (the pre-1953 predecessor to the TA), SBRC was sold to the City of New York. She further states that SBRC provides limited freight service for the TA, with the TA providing personnel and support services for SBRC's freight operation, and the MTA's Real Estate Department managing all of SBRC's property, including the property at issue in the instant action. Ms. Quintas admits, in ¶ 4 of her affidavit, that the property in question "is located within a right-of-way to former railroad tracks that South Brooklyn maintained" and "the railroad tracks that were adjacent to the Property are no longer in operation." She further claims that the MTA has never abandoned the property in question and over the years has leased the property "to generate revenue for South Brooklyn." She claims that the MTA issued a request for proposals (RFP) in January 2003 to solicit bids for the property.
Jerry Tung, Senior Real Estate Manager of the MTA, claims, in ¶ 2 of his affidavit attached to defendant's cross-motion, that "the MTA has over the years leased the Property in order to generate revenue for South Brooklyn." He mentions a lease dated February 2, 1973 between SBRC and Carnesi Realty Corp. [exhibit D of cross-motion]. The lease was for a one-month term, from March 1, 1973 to March 31, 1973, for $75.00, to use the premises as a parking area. However, only a portion of the lots in question were leased by Carnesi Realty. The lease shows that only about one-half of the property was leased, approximately 65 feet by 100 feet. Mr. Tung never states how long the lease with Carnesi Realty Corp. was in effect. Further, he states that the lease was terminated in November 2001 for improper use by the tenant. A diagram attached to and incorporated to the lease shows that Carnesi leased the northern half of the lots in question. This is consistent with the photographs in plaintiffs' exhibits C and D.
Mr. Tung claims that a bid for the lots was received, pursuant to an RFP, from Lopopolo Properties, LLC (Lopopolo), in January 2003. He then claims that in January 2005, he sent a letter [exhibit F of cross-motion] to Mr. Ng, informing him that his "garden structure on his property was encroaching upon the Property," and demanding removal of the shed. Mr. Ng "neither signed the acknowledgment nor removed the encroachment." Mr. Tung, in ¶ 's 5-7, describes hearsay conversations with alleged relatives of plaintiffs, in which plaintiffs' relatives claimed that plaintiffs' spoke to an "Irving" of the MTA, who, 15 to 18 years earlier, allowed plaintiffs to use the property in question.
MTA's counsel states, in ¶ 4 of his affidavit in support of the cross-motion and in opposition to plaintiffs' cross-motion, that if the cross-motion is denied, "the MTA will stipulate to the substitution of South Brooklyn for the MTA as the party defendant in this action." Plaintiffs' counsel, in his affirmation in opposition to defendant's cross-motion, acknowledges that SBRC owns the lots in question, not the MTA. Plaintiffs' counsel agrees to the offer of MTA's counsel "to Stipulate to a substitution of The South Brooklyn Railway Company as a defendant in this action should the defendant METROPOLITAN TRANSPORTATION AUTHORITY's Cross-Motion be denied [sic]." The Court will order this substitution and amend the caption.
Plaintiffs' counsel, in his affirmation in opposition to defendant's cross-motion, points out on page 7, that according to the New York State Department of State website search [exhibit A of affirmation in opposition to cross-motion] he conducted, SBRC is listed as an inactive business corporation, since its 99-year corporate duration expired on January 12, 1999. Ms. Quintas, in an affidavit attached to defendant's reply papers, notes that SBRC continued its operations despite the expiration of its corporate charter. SBRC's Board of Directors, according to Ms. Qunitas, authorized her to file an amendment to SBRC's certificate of incorporation to "make its duration perpetual." Ms. Qunitas evidently followed these Board directives. My independent check of the Department of State website, www.dos.state.ny.us, shows that SBRC is presently an active corporation. Interestingly, the address to which the Department of State will mail "process if accepted on behalf of the entity" is 130 Livingston Street, Brooklyn, New York 11201. This is also an office of the MTA. Discussion
Adverse possession to gain title to a property, according to the Court of Appeals in Belotti v Bickhardt, 228 NY 296, 308, "although not a favored method of procuring title, is a recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable." The Court of Appeals, in a unanimous 7-0 decision, Walling v Przybylo, 7 NY3d 228, 232 (2006) instructed that "[a]dverse possession must be proven by clear an convincing evidence (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154)." Further:
[t]o establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period (Belotti v Bickhardt, 228 NY 296 [1920]; see also Van Valkenburgh v Lutz, 304 NY 95, 99 [1952]; Speigel v Ferraro, 73 NY2d 622, 624 [1989]; Ray v Beacon Hudson Mtn. Corp., 88 NY2d at 159). Here the required period is at least 10 years ( see Ray at 159).
The Walling decision, at 232, cites the Court of Appeals holding in Monnet v Murphy, 207 NY 240, 245 (1913), that "[t]he ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period [ Emphasis added]." Further, in the Walling decision, the Court instructs that the adverse possessor can have a claim of right, even if the adverse possessor had actual knowledge of the owner of the property at the time of possession. In the instant case, it is irrelevant if plaintiffs had conversations with "Irving" to rent the lots, or knew if SBRC through the MTA owned the premises in question, or offered to purchase the lots from the MTA. The Walling Court, at 232-233, held that:
[b]y definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors (see Monnot v Murphy, supra). The fact that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed is not new ( see Humbert v Rector, Churchwardens Vestrymen of Trinity Church, 24 Wend. 587, 604 [1840] . . . The issue is "actual occupation," not subjective knowledge. [ Emphasis added]
See Hall v Sinclaire, 35 AD3d 660 (2nd Dept 2006); Eddyville Corp. v Relyea, 35 AD3d 1063 (3rd Dept 2007); DuMaurier v Lindsay-Bushwick Associates, L.P., 39 AD3d 460 (2nd Dept 2007); Penn Heights Beach Club, Inc. v Myers, 42 AD3d 602 (3rd Dept 2007).
Article 5 of the Real Property Actions and Proceedings Law (RPAPL) deals with adverse possession. RPAPL § 522 enumerates two "[e]ssentials of adverse possession under claim of title not written." These are claims for land:
deemed to have been possessed and occupied in either of the following cases, and no others:
1. Where is has been usually cultivated or improved.
2. Where it has been protected by a substantial inclosure.
See Mannhattan School of Music v Solow, 175 AD2d 106 (2nd Dept 1991); Morris v De Santis, 178 AD2d 515 (2nd Dept 1991); Groman v Botar, 228 AD2d 412 (2nd Dept 1996); Barnett v Nelson, 248 AD2d 656 (2nd Dept 1998); Gagliotti v Schneider, 272 AD2d 436 (2nd Dept 2000); Blumenfeld v De Luca, 24 AD3d 405 (2nd Dept 2005); Beyer v Patierno, 29 AD3d 613 (2nd Dept 2006); Hall v Sinclaire, supra; DuMaurier v Lindsay-Bushwick Associates, L.P., supra.
In the instant case, it appears that all five elements of adverse possession, as well as the two statutory requirements of RPAPL § 522, were met by plaintiffs. Plaintiffs' possession of the adjoining lots was "hostile and under claim of right." Plaintiffs planted their vegetable garden on the lot to the detriment of the defendant and defendant remained silent. SBRC, through the MTA and TA, acquiesced to plaintiffs' use of the premises for more than the RPAPL § 501 statutory period. Plaintiffs' conduct is paramount in determining that their possession of the land in question was "hostile and under a claim of right." Even if they knew that SBRC owned the land, they were in possession for more than 10 years. Walling, supra, at 232-233.
Plaintiffs' possession was "actual" with the vegetable garden and plants. It is clear that plaintiffs met the requirements of RPAPL § 522, with the land in question "usually cultivated." The chain link fence erected by plaintiffs is a "substantial inclosure."
Plaintiffs' possession was "open and notorious." Plaintiffs' vegetable garden, plants, shed, fence, and gate on the property in question were open and in plain sight to all. "Open" is defined in Black's Law Dictionary 1117 [7th ed 1999], as "manifest; apparent; notorious" as well as "visible; exposed to public view; not clandestine." "Notorious possession" is defined in Black's Law Dictionary 1184 [7th ed 1999], supra, as "[p]ossession or control that is evident to others; possession of property that, because it is generally known by people in the area where the property is located, gives rise to a presumption that the actual owner has notice of it." Plaintiffs' shed for their gardening tools were open for all to see and generally known to anyone who bothered to observe the premises.
Plaintiffs' possession of the property was exclusive. It is undisputed that plaintiffs enclosed some portion of the lot with a chain link fence and a gate to enter and exit. However, there is an issue of fact, based upon the photographs presented by plaintiffs as to how much of the lots in question plaintiffs exclusively occupied.
Plaintiffs claim that they have been in continuous possession of the property in question for more than the RPAPL § 501 statutory period of 10 years. This is uncontroverted by defendant.
It is clear that defendant MTA is immune from adverse possession if the land in question is used for a governmental function. Litwin v Town of Huntington, 208 AD2d 905 (2nd Dept 1994); Casini v Sea Gate Ass'n., 262 AD2d 593 (2nd Dept 1999); City of New York v Sarnelli Bros., Inc., 280 AD2d 573 (2nd Dept 2001); Monthie v Boyle Road Associates, L.P., 281 AD2d 15 (2nd Dept 2001); Kings Park Yacht Club, Inc. v State, 26 AD3d 357 (2nd Dept 2006). However, the land in question has not been used for any transportation function or governmental function for decades. Defendant has admitted that the train tracks have been removed from the property many years ago and defendant has allowed plaintiffs to occupy the lot for more than 10 years. Furthermore, defendant's 1973 lease with Carnesi is evidence that the train tracks had been removed prior to entering into that lease 34 years ago. If land is owned by a government in a "proprietary" or business capacity, it is subject to being acquired by adverse possession. The Court, in City of Tonawanda v Ellicott Creek Homeowners Ass' n, Inc., 86 AD2d 118, 125 (4th Dept 1982), instructed that:
Where the record owner is a municipality no interest will pass by adverse possession or prescription when the property is held for public or governmental purposes or is made inalienable by grant or statute. Conversely, property which is held only in a proprietary capacity and upon which there is no prohibition as to alienability is subject to claims of adverse possession or easement by prescription (City of New York v Wilson Co., 278 NY 86 [1938]; Matter of City of New York [Mileau Corp], 72 AD2d 745 [2nd Dept 1979; Lewis v Village of Lyons, 54 AD2d 488 [4th Dept]. [ Emphasis added]
See Casini v Sea Gate Ass'n., supra; Starner Tree Service Co., Inc. v City of New Rochelle, 271 AD2d 681 (2nd Dept 2000); Eller Media Co. v Bruckner Outdoor Signs, Inc., 299 AD2d 166 (1st Dept 2002); Albany Parking Services, Inc. v City of Albany, 3 AD3d 711 (3rd Dept 2004).
Plaintiffs have demonstrated to the court that if a preliminary injunction is not granted to them to restrain the MTA and/or TA, and their agents, acting for SBRC, from entering the land in question and removing their personal property, they will suffer irreparable harm. Further, plaintiffs have demonstrated to the Court that the equities are balanced in their favor, and that they will have a likelihood of success on the merits in their adverse possession action. Therefore, the Court will grant plaintiffs a preliminary injunction, enjoining the MTA, TA and SBRC, and their agents, from: entering onto the premises in question, Block 7212, Lots 50 and 52, in Kings County; removing from the premises in question structures erected by plaintiffs and personal property of plaintiffs; and, transferring title to the premises in question during the pendency of this action. CPLR §§ 6301; 6311; McLaughlin, Piven, Vogel, Inc. v W. J. Nolan Co., Inc., 114 AD2d 165 (2nd Dept 1986); Moody v Filipowski, 146 AD2d 675 (2nd Dept 1989); Aetna Ins. Co. v Capasso, 75 NY2d 860 (1990); Fisher v Deitsch, 168 AD2d 599 (2nd Dept 1990); Gerstner v Katz, 38 AD3d 835 (2nd Dept 2007); City of Long Beach v Sterling American Capital, LLC, 40 AD3d 902 (2nd Dept 2007); Iron Mountain Information Management, Inc. v Pullman, 41 AD3d 656 (2nd Dept 2007); Copart of Connecticut, Inc. v Long Island Auto Realty, LLC, 42 AD3d 420 (2nd Dept 2007). Plaintiffs, pursuant to CPLR § 6512 and Article 25 of the CPLR, shall file an undertaking of $100,000.00 cash or surety bond with the Clerk of Kings County, for the granting of this preliminary injunction.
With respect to defendant's cross-motion for summary judgment and dismissal of the instant complaint, defendant has failed to make a prima facie showing of entitlement to judgment as a matter of law. Defendant has failed to tender sufficient evidence to eliminate material issues of fact from the case. Plaintiffs have demonstrated that the property in question has a proprietary use, not a governmental use. See Alvarez v Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557, 562 (1980); Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Defendant's failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenberg v Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v New York University Medical Center, 64 NY2d 851 (1985).
The court, pursuant to CPLR Rule 3212 (b), to grant summary judgment on defendant's cross-motion must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2nd Dept 1990). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 (1979). Looking at the evidence presented in the light most favorable to plaintiffs, it is clear that plaintiffs have, at the bare minimum, raised triable issues of fact as to whether they have met the legal requirements for adverse possession. Further, defendants have relied upon hearsay evidence to argue that plaintiffs knew that they had no claim of right to ownership of the lots in question. The Court has already discussed above that the acquiescence of defendant to plaintiffs' conduct is sufficient to meet the adverse possession element of "hostile and under a claim of right." Walling, supra, 232-233; Hall v Sinclaire, supra; Eddyville Corp. v Relyea, supra; DuMaurier v Lindsay-Bushwick Associates, L.P., supra; Penn Heights Beach Club, Inc. v Myers, supra.
Conclusion
Accordingly, it is
ORDERED, that the order to cause of plaintiffs Man Yum Ng and Yan Quin Wu for a preliminary injunction, pursuant to CPLR §§ 6301 and 6311, is granted, in that defendant Metropolitan Transportation Authority, the New York City Transit Authority, the South Brooklyn Railway Company, and their agents, are enjoined and restrained during the pendency of this action from: entering onto the premises in question, Block 7212, Lots 50 and 52, Kings County; removing from the premises in question, Block 7212, Lots 50 and 52, Kings County, structures erected by plaintiffs and personal property of plaintiffs; and, transferring title to the premises in question, Block 7212, Lots 50 and 52, Kings County; and it is further
ORDERED, that plaintiffs Man Yum Ng and Yan Qin Wu, shall file forthwith, pursuant to CPLR § 6512 and Article 25 of the CPLR, an undertaking of $100,000.00 cash or surety bond with the Clerk of Kings County; and it is further
ORDERED, that the cross-motion of defendant Metropolitan Transportation Authority, pursuant to CPLR Rule 3212, for summary judgment to dismiss plaintiffs' adverse possession action, and to strike plaintiffs' November 13, 2006 notice of pendency against the premises in question, Block 7212, Lots 50 and 52, Kings County, is denied; and it is further
ORDERED, that the caption in this action, by agreement of the parties, is amended to:
MAN YUM NG and YAN QIN WU, Plaintiffs, v. SOUTH BROOKLYN RAILWAY COMPANY, Defendant.
Index No. 34954/06
This constitutes the Decision and Order of the Court.