Opinion
2019–09125 Index No. 60997/18
04-13-2022
Franklyn A. MORGAN, et al., appellants, v. Larry SUCO, et al., respondents.
Percival A. Clarke, Mount Vernon, NY, for appellants. Neveen M. Nesheiwat, Yonkers, NY, for respondents.
Percival A. Clarke, Mount Vernon, NY, for appellants.
Neveen M. Nesheiwat, Yonkers, NY, for respondents.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, in effect, pursuant to RPAPL article 15 to quiet title to real property, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated July 3, 2019. The order granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is affirmed, with costs.
The plaintiffs and defendants are neighbors, and the plaintiffs allege that a fence on the defendants' property encroaches upon their property. In July 2018, the plaintiffs commenced this action, inter alia, in effect, pursuant to RPAPL article 15 to quiet title to real property. The defendants moved, among other things, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. By order dated July 3, 2019, the Supreme Court granted that branch of the defendants' motion. The plaintiffs appeal.
" ‘A person claiming title to real property, but not in possession thereof, must act, affirmatively and within the time provided by statute’ " ( WPA Acquisition Corp. v. Lynch, 82 A.D.3d 1215, 1216, 920 N.Y.S.2d 223, quoting Downes v. Peluso, 115 A.D.2d 454, 454, 495 N.Y.S.2d 691 ; see Ford v. Clendenin, 215 N.Y. 10, 17, 109 N.E. 124 ). Pursuant to CPLR 212(a), "[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action" (see Matter of Marini, 119 A.D.3d 584, 989 N.Y.S.2d 487 ; WPA Acquisition Corp. v. Lynch, 82 A.D.3d at 1216, 920 N.Y.S.2d 223 ).
Here, the defendants met their initial burden of establishing the time in which to commence this action has expired by demonstrating that the fence was erected more than 10 years prior to the commencement of this action (see Nautilus Land Owners Corp. v. Gilbert, 253 A.D.2d 862, 678 N.Y.S.2d 513 ). In opposition, the plaintiffs failed to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether the plaintiffs actually commenced the action within the applicable limitations period (see Kotlyarsky v. Abrazi, 188 A.D.3d 853, 854, 135 N.Y.S.3d 426 ; Barry v. Cadman Towers, Inc., 136 A.D.3d 951, 952, 25 N.Y.S.3d 342 ). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.