Opinion
November 5, 1990
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly concluded that the respondents sustained their burden of proving by clear and convincing evidence (see, Van Valkenburgh v. Lutz, 304 N.Y. 95; Rusoff v. Engel, 89 A.D.2d 587; Mastin v. Village of Lima, 86 A.D.2d 777) that they acquired ownership of the disputed area by adverse possession by reason of the existence of a substantial inclosure around the area since 1967 (see, RPAPL 522; see, e.g., Birnbaum v. Brody, 156 A.D.2d 408; Golden Hammer Auto Body Corp. v. Consolidated Rail Corp., 151 A.D.2d 545). Moreover, even if we were to accept the petitioners' claim that the disputed area was not substantially inclosed until a higher fence was installed in the summer of 1975, the record unequivocally demonstrates that this second fence was in place for more than 10 years before the petitioners asserted any claim of ownership of the property (see, RPAPL 311). Additionally, while a determination of the issue is not essential to our conclusion, it further appears that the respondents' activities with regard to the narrow strip of property, including the periodic replacement of gravel, maintenance, fencing and eventual paving of the area, constituted usual cultivation or improvement of the property for adverse possession purposes (see, RPAPL 522). Inasmuch as all of the elements of adverse possession have been established herein (see, e.g., Spiegel v. Ferraro, 73 N.Y.2d 622; Palazzolo v. Malba Estates, 118 A.D.2d 841), the trial court properly dismissed this proceeding in which the petitioners sought leave to enter upon the respondents' property to erect a fence inclosing the disputed area within the petitioner's property.
Insofar as the petitioners contend that the text of the judgment in this case lacks adequate specificity, we note that no similar objection was raised at the trial level, and that the proper vehicle for obtaining the relief sought is a motion addressed to the trial court to amend or resettle the judgment. Mangano, P.J., Thompson, Sullivan and Rosenblatt, JJ., concur.