Opinion
No. 2333–13.
09-23-2014
Mathieu R. NETROSIO and Angela Ianniello, Plaintiffs, v. John PETEANI and Angela Nieves–Peteani, Defendants.
Brian T. Edwards, Esq., Drew, Davidoff & Edwards Law Offices, LLP, Monticello, Attorney for Plaintiffs. Laura–Michelle Horgan, Esq., Dorf & Nelson LLP, Rye, Attorney for Defendants.
Brian T. Edwards, Esq., Drew, Davidoff & Edwards Law Offices, LLP, Monticello, Attorney for Plaintiffs.
Laura–Michelle Horgan, Esq., Dorf & Nelson LLP, Rye, Attorney for Defendants.
Opinion
FRANK J. LaBUDA, J.
This matter comes before the Court on Defendants' (1) motion for partial summary judgment pursuant to CPLR § 3212, (2) motion to dismiss pursuant to CPLR § 3211(a)(10) ; and (3) motion to dismiss pursuant to CPLR § 3211(a)(7). Plaintiffs have submitted an affirmation in opposition.
This case involves disputed title and exclusivity of use of a parcel of land (hereinafter, “subject property”) located adjacent to and partially submerged under Mohican Lake in Sullivan County New York. Plaintiffs, who purchased the subject property at a Sullivan County tax foreclosure sale in 2010, have brought this action to quiet title and determine the rights of adjacent landowners to use and/or enter upon the subject property. Defendants own the parcel immediately west of, and adjacent to, the subject property (hereinafter, “Lot 49”) and a third party, Ryll, owns the parcel directly south of, and adjacent to Defendants' property (hereinafter, “Lot 48”). It is Plaintiffs' position that they have a valid title, with exclusivity, to the subject property (both adjacent to, and below the lake) and that no one else may use the subject property to access Mohican Lake. Plaintiffs erected a gate to hinder access to the subject property and lake, and attempted to cut Defendants' dock loose from the shoreline of Mohican Lake, but were stopped by law enforcement agents.
Dismissal Pursuant to CPLR § 3211(a)(10)
Defendants argue that the deed for the subject property establishes that the subject property is for the “exclusive use” of the occupants or “bonafide residents” of Lots 48 and 49. Defendants, in opposition to Plaintiffs' motion, argue, procedurally, that because Lot 48 shares exclusive use of the subject property pursuant to the deed, Ryll, the owner of Lot 48, is an indispensable party to this action to quiet title—as the determination of this action will impact the rights and title interests of Ryll. This Court agrees, procedurally.
Pursuant to CPLR § 3211(a)(10), “....A party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... the court should not proceed in the absence of a person who should be a party.” The deed rendered to Plaintiffs pursuant to the tax foreclosure sale for the subject property specifically states that it is for the exclusive use of the bona fide residents of Lots 48 and 49. Because Ryll is the owner of Lot 48, this action to quiet title cannot proceed in the absence of Ryll as a named party, and therefore must be dismissed, without prejudice, with Plaintiffs having the option to re-file the action. See East Hampton Livestock Corp. v. Fleming, 53 AD3d 641 [2nd Dept.2008] ; Fila and Halstead v. Angiolillo and Voulo, 88 A.D.2d 693 [3rd Dept.1982].
Dismissal Pursuant to CPLR § 3211(a)(7)
Defendants have also moved for dismissal of Plaintiffs' adverse possession claim on the ground that Plaintiffs failed to state a cause of action. This Court agrees. Plaintiffs have failed to allege the necessary elements for a claim of adverse possession. RPAPL § 522.
... [L]and is deemed to have been possessed and occupied [by adverse possession] in either of the following cases and no others:
1) Where there have been acts sufficiently open to put a reasonably diligent owner on notice.
2) Where it has been protected by substantial enclosure, except as provided in subdivision one of section five hundred forty-three of this article [which excepts “de minimus non-structural encroachments including but not limited to fences, hedges, shrubbery, plantings, sheds and non-structural walls”]. RPAPL §§ 522, 543(1).
A plaintiff claiming adverse possession must also satisfy the common law requirements of demonstrating that the possession of the property in question was “hostile, and under a claim of right, and continuous for 10 years.” D'Argenio v. Ashland Bldg., LLC, 78 AD3d 758 [2nd Dept 2010]. “Because adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence.” Gulf Air Stream Corp. v. 3300 Lawson Corp., 99 AD3d 822, 826 [2nd Dept 2012], citation omitted. In the instant matter, Plaintiffs have failed to allege sufficient facts to support their claim for adverse possession—they have failed to allege any acts that were sufficiently open to put a reasonably diligent owner on notice, RPAPL § 522(1), (2), or any facts to suggest that Plaintiffs “substantially enclosed” the subject property. The allegation that they erected a gate is not sufficient. See 340 West LLC v. Spring Street Garage Condominium, 2011 WL 1944209 at *4 [Sup.Ct. N.Y. Co., May 4.2011]. They have also failed to allege a condition precedent and threshold issue for a claim of adverse possession, that is, that they have been in possession of the subject property under a claim of right for 10 years. At best, they have alleged they purchased the subject property at a Sullivan County tax foreclosure sale in 2010 and therefore have legal and valid title pursuant to that purchase. Plaintiffs have failed to demonstrate that they have been in open and notorious exclusive possession of the subject property prior to their purchasing it in 2010. Koepp v. Holland, 688 FSupp2d 65 [NDNY 2010]. A review of the deeds, the existence of Defendants' dock on the subject property, and the lack of any allegations or proof that Plaintiffs exclusively used the subject property under a claim of right for ten years, belies such a claim. In light of the above, this Court must dismiss Plaintiffs' adverse possession claim.
The Court need not address the remainder of Defendants' motion for summary judgment or motion to dismiss at this time. Should Plaintiffs pursue this matter, the Court will address the issues raised by all parties at the appropriate time.
Based on the foregoing, it is
ORDERED that Plaintiffs' cause of action for adverse possession is hereby dismissed in its entirety with prejudice; and it is further
ORDERED that the complaint is dismissed, without prejudice, pursuant to CPLR § 3211(a)(10), for failure to join an indispensable party to the action; and it is further
ORDERED that Plaintiffs may re-file the within action, naming all indispensable and necessary parties, at any time within the statute of limitations for such action.
This shall constitute the Decision and Order of this Court.
Papers considered:
Notice of Motion, by Laura–Michelle Horgan, Esq., dated July 1, 2014
Affirmation with Exhibits, by Laura–Michelle Horgan, Esq., dated July 1, 2014
Affidavit with Exhibits, by John Peteani, dated June 9, 2014
Defendants' Memorandum of Law, by Laura–Michelle Horgan, Esq., dated July 1, 2014
Affirmation with Exhibits, by Brian T. Edwards, Esq., dated August 13, 2014
Affidavit with Exhibits, by Steven DeCarlo, dated August 6, 2014
Affidavit with Exhibits, by Mathieu Netrosio, dated August 7, 2014
Reply Affirmation, by Laura–Michelle Horgan, Esq., dated September 3, 2014
Defendants' Memorandum of Law, by Laura–Michelle Horgan, Esq., dated September 3, 2014