Opinion
July 1, 1991
Appeal from the Supreme Court, Suffolk County (Namm, J.).
Ordered that the order and judgment dated October 2, 1989, is affirmed; and it is further,
Ordered that the order entered January 10, 1990, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
The plaintiffs Irving Liebman and the Manhattan School of Music commenced an action for ejectment in January 1983 against the appellant. The plaintiffs sought to compel the appellant to remove certain structures which encroached on their property, including a stockade fence, a wire fence, an outdoor shower, and a wooden stairway. In addition, the plaintiffs sought to recover damages for trespass, a declaration that the boundary between the properties was accurately represented by a map and descriptions set forth in various deeds, and a declaration that a right of way in the appellant's deed is limited to a foot path. By amended answer, the appellant asserted that he had erected and maintained the aforementioned structures under claim of right and interposed a counterclaim alleging that he acquired title to the disputed property by adverse possession.
In 1983 the plaintiffs moved for summary judgment, which motion was denied by Justice Doyle on the ground that there were triable issues of fact as to whether the appellant adversely possessed the disputed property for the 10-year statutory period. Thereafter, Justice Orgera was assigned to the case under the individual assignment system. After five years of further discovery, the plaintiffs brought a second motion for summary judgment. When Justice Orgera left the bench in December 1988, Justice Namm was assigned to the case. Although the appellant requested that the plaintiffs' second motion for summary judgment be referred to Justice Doyle, Justice Namm found this to be unnecessary, and granted the plaintiffs' motion for summary judgment. We affirm.
Under RPAPL 522, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was either "usually cultivated or improved" (RPAPL 522) or "protected by a substantial enclosure" (RPAPL 522; see, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 A.D.2d 118; see also, Birnbaum v Brody, 156 A.D.2d 408). In addition, a party must satisfy the common-law requirement of demonstrating that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for a period of 10 years or more (see, City of Tonawanda v Ellicott Cr. Homeowners Assn., supra; Franzen v Cassarino, 159 A.D.2d 950; Woodrow v Sisson, 154 A.D.2d 829; Campano v Scherer, 49 A.D.2d 642).
By letter dated April 13, 1981, the appellant wrote the Manhattan School of Music offering to purchase the property in dispute. An offer made by one in possession without title to purchase from the record owner during the statutory period is a recognition of the record owner's title and prevents adverse possession from accruing (see, Campano v Scherer, supra, at 643; Stauffer Chem. Co. v Costantini, 38 A.D.2d 863). Having acknowledged the School's legal title to the disputed property on April 13, 1981, the appellant was required to set forth sufficient proof to raise triable issues of fact concerning his adverse possession of the disputed property for 10 years prior to April 13, 1981.
The disputed property in this case consists of a "pine grove", a dense growth of pine trees located in the northeastern corner of the plaintiffs' property, and an "improved strip", a narrow strip of land contiguous to the appellant's backyard which has been improved with shrubs, trees, a lawn, fencing, electrical outlets, and a jungle gym. Although the "improved strip" of property has been undeniably cultivated and improved, only minimal amounts of this work were performed beginning on April 13, 1971. The appellant presented evidence that his sister performed unspecified work prior to Memorial Day of 1971, that his sister went onto the improved strip to remove trees and prune trees starting in 1970, that his sister witnessed the clearing, filling, and planting of sod south of her brother's record boundary line from 1969 to 1971, and that an outdoor shower was present on the property by 1971. Given the nature of the property, the limited work performed beginning on or before April 13, 1971, is insufficient to constitute the "usual cultivation and improvement" necessary to support the appellant's claim of adverse possession (see, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 A.D.2d 118, supra; Franzen v Cassarino, 159 A.D.2d 950, supra; Woodrow v Sisson, 154 A.D.2d 829, supra; Campano v Scherer, 49 A.D.2d 642, supra; Shinnecock Hills Peconic Bay Realty Co. v Aldrich, 132 App. Div. 118, affd 200 N.Y. 533; Ramapo Mfg. Co. v Mapes, 216 N.Y. 362). Nor has the appellant presented sufficient proof of the "usual cultivation and improvement" of the "pine grove". This parcel remains a dense grove of pine trees. The appellant's conclusory and nonspecific allegations as to his purported cultivation and improvement of the disputed property beginning on April 13, 1971, are insufficient to defeat the plaintiffs' motion for summary judgment (see, Boumis v Caetano, 140 A.D.2d 401; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra, at 123).
Upon examining the record, we find that Justice Namm's refusal to transfer the case to Justice Doyle did not constitute error (see, Billings v Berkshire Mut. Ins. Co., 133 A.D.2d 919; Vardy Holding Co. v Metric Resales, 131 A.D.2d 564; Ministry of Christ Church v Mallia, 129 A.D.2d 922; Dalrymple v King Community Health Center, 127 A.D.2d 69).
Further, we find that Justice Namm did not err in refusing to recuse himself. Upon learning of the substitution of new counsel for the appellant, Justice Namm considered recusing himself from the case due to a brief social acquaintance with a partner at that law firm. Upon further reflection, however, Justice Namm concluded that recusal was unwarranted and that he could serve with complete impartiality. Since recusal is not statutorily required because of consanguinity, financial interest or the like, the matter of recusal was appropriately left to the personal conscience of Justice Namm (see, People v Reid, 140 A.D.2d 641; People v Bartolomeo, 126 A.D.2d 375; Poli v Gara, 117 A.D.2d 786). The appellant has failed to set forth any demonstrable proof of bias to warrant the conclusion that Justice Namm's refusal to recuse himself was an improvident exercise of discretion (see, People v Bartolomeo, supra; People v Diaz, 130 Misc.2d 1024).
We have considered the appellant's remaining contentions and find them to be without merit. Thompson, J.P., Kunzeman, Lawrence and Balletta, JJ., concur.