Opinion
No. 21962/2007.
2011-06-21
James D. REDDY and Donna D'Amato, Plaintiffs, v. Anthony SCUBLA, Clara Scubla, Brian Temerson, Lisa Temerson and “John Doe no.1” through “John Doe # 10” the last ten names being fictitious and unknown to the Plaintiffs, intended to be the persons or parties, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.
James D. Reddy, P.C., Lindenhurst, for Plaintiffs. Kevin J. Fitzgerald, Esq., Smithtown, Marschhausen & Fitzpatrick, P.C., Westbury, for Defendants.
James D. Reddy, P.C., Lindenhurst, for Plaintiffs. Kevin J. Fitzgerald, Esq., Smithtown, Marschhausen & Fitzpatrick, P.C., Westbury, for Defendants.
PAUL J. BAISLEY JR., J.
Upon the following papers numbered 1 to 52 read on this motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers 1–13; 24–52; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 14–20; Replying Affidavits and supporting papers 21–23; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion by the defendants Brian Temerson and Lisa Temerson for summary judgment and the motion by the plaintiffs for summary judgment are consolidated for the purpose of this determination; and it is further
ORDERED that the motion (motion sequence no. 008) of defendants Brian Temerson and Lisa Temerson for an order pursuant to CPLR R.3212 granting summary judgment in their favor dismissing the complaint is granted; and it is further
ORDERED that the motion (motion sequence no. 009) of plaintiffs for an order pursuant to CPLR R. 3212 granting summary judgment in their favor is determined as set forth hereinafter.
The plaintiffs commenced this declaratory judgment action pursuant to Real Property Actions and Proceedings Law (“RPAPL”) Article 15 to quiet title to a strip of real property approximately 10 feet wide and 71.03 feet long located in the side yard area between their real property, known as 810 Anthony Drive, and the adjoining real property known as 820 Anthony Drive in Lindenhurst, New York. The contested strip of real property extends about 7 feet from the southernmost portion of the house at 810 Anthony Drive to the approximate midpoint between the two properties and its length extends 71.03 feet from the rear border of 810 Anthony Drive westward to the front border of the property.
The plaintiffs seek to obtain title to the strip, which they refer to as the “midpoint strip,” based on the doctrine of practical location and adverse possession by the prior owners of their property, the defendants Brian Temerson and Lisa Temerson (the Temersons), from July 19, 1991 through December 15, 2006. Brian Temerson was deeded 810 Anthony Drive on July 19,1991 and his wife Lisa Temerson was added to the deed on January 11, 1994. In September 2006, the Temersons contracted to sell 810 Anthony Drive to the plaintiffs and deeded the property to the plaintiffs on December 15, 2006. The defendants Anthony Scubla and Clara Scubla (the Scublas) have been the titled owners of 820 Anthony Drive since May 23, 1991.
The plaintiffs claim that the prior owners of their property, the Temersons, and the Scublas assumed by mutual mistake that the side yard property line between the two houses was at the approximate midpoint rather than approximately 24 feet north from the Scubla house and approximately 7 feet south from the Temerson house, as indicated by the 1991 deeds. According to the plaintiffs, based on that mutual assumption, the Temersons solely maintained and improved the subject strip of real property for a period of more than ten years, from July 1991 through December 15, 2006, by having a professional landscaper mow, weed, fertilize and clean up the lawn; watering the lawn with in-ground sprinklers; improving the area with a deck and land fill to raise and level the land; substantially fencing in a portion of the strip in the rear of their property with a six-foot-high vinyl fence and railroad tie retaining walls; installing underground electric lines; and installing posts for an electric “bug zapper” and a bird house at the southernmost portion of the strip.
By their complaint, the plaintiffs seek a declaration that they are the lawful owners of and are vested with an absolute and unencumbered title in fee to the subject strip of real property in dispute or, in the alternative, damages for breach of contract by the Temersons, and damages for trespass against the Scublas for entering onto the plaintiff's property and dismantling a portion of the fence and cutting down fence posts.
Regarding the Temersons, the plaintiffs allege that the Temersons breached paragraph 6 of the contract of sale, in which they agreed to transfer 810 Anthony Drive “free of all encumbrances except as herein stated,” by installing a deck and fence that encroached on the Scublas' property. In addition, the plaintiffs allege that they were unaware of the encroachments when they purchased the property; they relied on a survey submitted by Lisa Temerson to the Village of Lindenhurst in July 1997 depicting the fence as being situated on the property line of 810 Anthony Drive; and that the Temersons fraudulently induced the plaintiffs to purchase 810 Anthony Drive by representing that the midpoint strip, fence and deck were part of 810 Anthony Drive.
By their answer, the Temersons assert affirmative defenses including that the contract of sale contained a merger clause in paragraph 22 stating that the contract was the entire agreement between the parties and that no verbal representations were relied upon by either party; the legal description of the property attached to the contract, title report and deed clearly set forth the boundaries of the premises being sold; and plaintiffs failed to provide any objections to title to the Temersons or their attorney prior to closing.
The Scublas, by their answer, contend that since June 11, 2007 they have repeatedly demanded that the plaintiffs remove their persons and property from the subject strip of real property that is titled to the Scublas and that the plaintiffs have repeatedly refused to do so. The Scublas further contend that they have no personal knowledge of any adverse possession claim. They assert counterclaims for ejectment under the common law and RPAPL § 601, for the removal of the plaintiff's encroaching structures pursuant to RPAPL § 871, and for trespass, nuisance and abuse of process. The Court's computer records indicate that the note of issue for this action was filed on July 29, 2010.
The Temersons now seek summary judgment in their favor dismissing the complaint as against them based on the doctrine of merger inasmuch as the plaintiffs knew or should have known that the midpoint strip was not part of the conveyance of 810 Anthony Drive, particularly since the plaintiff James D. Reddy acted as an attorney and real estate broker in the transaction. They assert that the deed that they delivered to the plaintiffs only transferred 810 Anthony Drive, not the midpoint strip, and that said deed extinguished any claims by the plaintiffs to the midpoint strip. In addition, the Temersons assert that the deed only provided a covenant against grantors acts, not a covenant against encumbrances; 810 Anthony Drive was not encumbered pursuant to Real Property Law § 253(6) when deeded to the plaintiffs; and the contract of sale and title report were devoid of any reference to the midpoint strip. The Temersons further assert that paragraph 28(b) of the contract of sale indicated that the property was transferred subject to “any state of facts an accurate survey may show” and paragraphs 26 and 31 of said contract required the plaintiffs to alert the Temersons to any objections to title and provided the plaintiffs with an opportunity to cancel the contract. They point out that the plaintiffs' own survey inspection dated November 27, 2006 and the property transfer report that they executed indicated that 810 Anthony Drive was 114 “front feet” in width and 71 feet in depth. In support of their motion, the Temersons submit, among other things, the summons and complaint, their answer, the contract of sale dated September 2006, the title report ordered by the plaintiffs, the deed dated December 15, 2006, the deposition transcript of the plaintiff James D. Reddy, and the property transfer report.
In opposition to the Temersons' request for summary judgment, the plaintiffs request that the Court search the record and grant them summary judgment on their cause of action for breach of the covenant against grantor's acts in the deed dated December 15, 2006. The plaintiffs contend that rather than the narrow interpretation of Real Property Law § 253(6) espoused by the Temersons, a broad interpretation is required and that the admitted improvements of the Temersons in the form of the fence, deck, fill, railroad ties, sprinklers, posts and underground electric wiring encroaching upon the Scublas' property are encumbrances that are part of the premises conveyed to the plaintiffs.
In reply, the Temersons argue that the doctrine of caveat emptor applies.
It is well settled that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986];Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980] ). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985] ). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez v. Prospect Hosp., 68 N.Y.2d at 324 [1986], citing to Zuckerman v. City of New York, 49 N.Y.2d at 562).
Generally, parties to a contract for the sale of real property, like signatories of any agreement, are free to tailor their contract to meet their particular needs and to include or exclude those provisions which they choose. Absent some indicia of fraud or other circumstances warranting equitable intervention, it is the duty of a court to enforce rather than reform the bargain struck ( see Venetoklis Family Ltd. Partnership v. Kora Developers, LLC, 74 AD3d 1057, 1058, 902 N.Y.S.2d 665 [2d Dept 2010] ). Under the doctrine of merger, provisions in a contract of sale of real property merge into the deed and are thereby extinguished absent the parties' demonstrated intent that a provision will survive transfer of title ( see Hunt v. Kojac, 245 A.D.2d 858, 858–859, 666 N.Y.S.2d 330 [3d Dept 1997] ). Based on the foregoing, where the dispute is over the extent of the property conveyed, the deed controls ( see Summit Lake Assocs., Inc. v. Johnson, 158 A.D.2d 764, 551 N.Y.S.2d 357 [3d Dept 1990] ). Here, the subject deed dated December 15, 2006 did not convey the midpoint strip to the plaintiffs.
Where the dispute is over the state of title, if the parties specifically agreed that the covenant in the contract of sale concerning the state of title would “survive closing,” those provisions cannot be considered as having merged into the deed (Toys “R” Us–NYTEX, Inc. v. Rosenshein Dev. Corp., 172 A.D.2d 826, 569 N.Y.S.2d 196 [2d Dept 1991] ). Paragraph 6 of the contract of sale defined closing as including “... the delivery to Purchaser of a bargain and sale deed with covenants against grantors' acts, deed in proper statutory form for recording so as to transfer full ownership (fee simple title) to the Premises, free of all encumbrances except as herein stated.”
The deed dated December 15, 2006 provides that “the party of the first part covenants that the party of the first part has not done or suffered anything whereby the said premises have been encumbered in any way whatever, except as aforesaid.” Pursuant to Real Property Law § 253(6), “[a] covenant that the grantor has not done or suffered anything whereby the said premises have been incumbered, ‘must be construed as meaning that the grantor has not made, done, committed, executed, or suffered any act or acts, thing or things whatsoever, whereby or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be impeached, charged or incumbered in any manner or way whatsoever.”
Here, the Temersons, by installing a deck and fence and other items that encroached on the Scublas' property, did not thereby encumber their own property of 810 Anthony Drive and thus did not breach the aforementioned covenant in the deed. Significantly, the plaintiffs obtained title insurance prior to closing. To the extent that the fence, deck and other items listed by the plaintiffs encroached upon the Scublas' property, they encumbered 820 Anthony Drive, and thus affected the Scublas' title ( see Lane v. Seltzer, 303 A.D.2d 378, 755 N.Y.S.2d 663 [2d Dept 2003] ).
In any event, the parties agreed in paragraph 26 of the contract of sale that any title defect for which the purchaser failed to give written notice of objection within the time required by the contract would be deemed waived. The title report ordered by the plaintiffs indicated in Schedule B that a wood stockade fence was located at variance to the easterly record line up to 1.9 feet east of said easterly record line on a survey dated October 29, 1985; that a survey inspection made on November 27, 2006 disclosed that a deck was added to the rear of the home; and that the title company “excepts the location of fences added, not located, not shown on survey set forth herein.” Thus, the plaintiffs were aware of the exception to fences other than the wooden stockade fence and failed to give written notice of their objection to said exception within the time specified in the contract. The plaintiffs thereby waived their right to object to said title defect ( see Venetoklis Family Ltd. Partnership v. Kora Developers, LLC, 74 AD3d at 1058).
“New York adheres to the doctrine of caveat emptor and imposes no duty on the seller to disclose any information concerning the premises when the parties deal at arm's length, unless there is some conduct on the part of the seller which constitutes active concealment” (Platzman v. Morris, 283 A.D.2d 561, 562, 724 N.Y.S.2d 502 [2d Dept 2001]; see Bernardi v. Spyratos, 79 AD3d 684, 912 N.Y.S.2d 627 [2d Dept 2010] ). The mere silence of the seller, without some act or conduct which deceived the purchaser, does not amount to a concealment that is actionable as a fraud ( see Matos v. Crimmins, 40 AD3d 1053, 1054, 837 N.Y.S.2d 234 [2d Dept 2007] ). “To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller's agents thwarted the plaintiff's efforts to fulfill his [or her] responsibilities fixed by the doctrine of caveat emptor” (Jablonski v. Rapalje, 14 AD3d 484, 485, 788 N.Y.S.2d 158 [2d Dept 2005]; see Matos v. Crimmins, 40 AD3d 1054–1055).
Paragraph 28 of the contract of sale provided that “the premises are sold and will be conveyed subject to: (a) any covenants, restrictions, reservations, easements, agreements, and utility easements of record, provided that they are not violated by the present use or existing structures and do not render title unmarketable; (b) any state of facts an accurate survey may show, provided title is not rendered unmarketable thereby; ...”
The Temersons demonstrated, prima facie, their entitlement to summary judgment dismissing the claim of fraudulent inducement ( see Matos v. Crimmins, 40 AD3d at1055). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the Temersons actively concealed the encroachments and thwarted the plaintiffs' efforts to discover them by obtaining their own survey ( see id.). Therefore, the request by the Temersons for summary judgment dismissing the complaint as against them is granted.
The plaintiffs seek summary judgment in their favor on the grounds that they have title to the subject midpoint strip under the doctrines of practical location and adverse possession. In addition, the plaintiffs seek summary judgment against the Scublas for trespass, private nuisance, and forcible or unlawful entry, and for dismissal of the Scublas' counterclaims. The plaintiffs argue that the occasional use of the midpoint strip by the Scublas is insufficient to support their claim for ejectment. In support of their motion, the plaintiffs submit, among other things, the affidavit of the plaintiff James D. Reddy, the summons and complaint, the answers of the Scublas and the Temersons, the plaintiffs' reply to the Scublas' counterclaims, the deeds indicating ownership of 810 and 820 Anthony Avenue, the deposition transcripts of the Scublas and the Temersons, affidavits of Lisa Temerson, surveys of the subject area that include the location of sprinkler heads; and the application by the Temersons for a permit to install the subject fence and an attached survey. No opposition to the plaintiffs' request for summary judgment has been submitted.
Whether the plaintiffs acquired title to the disputed parcel under the doctrine of practical location is dependent upon a clear demarcation of a boundary line and proof that there was mutual acquiescence to the boundary line by the parties so that the parties were equally affected by it and it was definitely and equally known, understood and settled by them for more than the ten-year statutory period governing adverse possession ( see McMahon v. Thornton, 69 AD3d 1157, 1160, 897 N.Y.S.2d 247 [3d Dept 2010]; Robert v. Shaul, 62 AD3d 1127, 1128, 879 N.Y.S.2d 240 [3d Dept 2009] ).
With respect to adverse possession, in July 2008, Real Property Actions and Proceedings Law §§ 501, 522, and 543 were amended and the amendments applied solely to those actions commenced after July 7, 2008 ( see Asher v. Borenstein, 76 AD3d 984, 986, 908 N.Y.S.2d 90 [2d Dept 2010] ). Inasmuch as the plaintiffs commenced this action prior to July 7, 2008, those amendments are not applicable to this action ( see id.). Under the law as it existed prior to July 7, 2008, where a claim of adverse possession was not based upon a written document, the plaintiffs had to demonstrate that the disputed parcel was “usually cultivated or improved” or “protected by a substantial inclosure” ( see Bratone v. Conforti–Brown, 79 AD3d 955, 913 N.Y.S.2d 762 [2d Dept 2010]; Real Property Actions and Proceedings Law former § 522[1], [2], cf. L 2008, ch 269, § 5, as amended). In addition, the plaintiffs had to prove by clear and convincing evidence the following common-law requirements of adverse possession: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years ( see BTJ Realty, Inc. v. Caradonna, 65 AD3d 657, 658, 885 N.Y.S.2d 308 [2d Dept 2009]; Goldschmidt v. Ford St., LLC, 58 AD3d 803, 804–805, 872 N.Y.S.2d 493 [2d Dept 2009] ).
An adverse possession by successive persons for the statutory period may be effectual provided that such possession be continued by an unbroken chain of privity between the adverse possessors (Belotti v. Bickhardt, 228 N.Y. 296, 306, 127 NE 239 [1920];see Pegalis v. Anderson, 111 A.D.2d 796, 797, 490 N.Y.S.2d 544 [2d Dept 1985] ). Since adverse possession is disfavored as a means of gaining title to land, all elements of an adverse possession claim must be proved by clear and convincing evidence ( see Best & Co. Haircutters, Ltd. v. Semon, 81 AD3d 766, 916 N.Y.S.2d 632 [2d Dept 2011] ). Merely possessing land without any claim of right, no matter how long it continues, gives no title ( see Gerlach v. Russo Realty Corp., 264 A.D.2d 756, 695 N.Y.S.2d 128 [2d Dept 1999] ).
The type of cultivation or improvement sufficient to satisfy the statute will vary with the character, condition, location and potential uses for the property and proof that grass on the property has been cut exclusively by the party seeking adverse possession may be sufficient to satisfy the statutory requirement of cultivation in view of the character of the disputed property ( see Birnbaum v. Brody, 156 A.D.2d 408, 408, 548 N.Y.S.2d 691 [2d Dept 1989] ). The frequency and duration of such acts of improvement are to be considered in conjunction with the claimant's other acts of dominion and control over the premises in determining whether actual possession of land has been continuous ( see Ray v. Beacon Hudson Mt. Corp., 88 N.Y.2d 154, 160, 643 N.Y.S.2d 939 [1996] ).
The plaintiffs are claiming adverse possession under Real Property Actions and Proceedings Law former § 522(1), “usually cultivated and improved,” and seek consideration of the vinyl fence as a further improvement rather than “a substantial inclosure” under Real Property Actions and Proceedings Law former § 522(2), since said fence only encloses the rear portion of the midpoint strip.
Lisa Temerson's testimony reveals that the subject vinyl fence was installed in September 1997 and that the sprinkler line was used as the boundary line for its installation. Anthony Scubla explained at his deposition that the sprinklers for 810 and 820 Anthony Drive were installed by the same builder prior to the Scublas' purchase of 820 Anthony Drive. Anthony Scubla's deposition testimony reveals that he first realized that the subject vinyl fence was encroaching their property at 820 Anthony Drive on June 4, 2007 when he gave a copy of the survey of his property to a prospective purchaser who was walking around the house with a broker. On that same day he informed the plaintiff James D. Reddy of the encroachment and thereafter ordered a new survey. Anthony Scubla testified that prior to June 4, 2007 he had no idea where his property line was and that he assumed that when Lisa Temerson installed the fence, it was placed on the boundary line. Clara Scubla also testified that she did not know where their property line was located prior to June 4, 2007.
The Scublas' testimony reveals that they installed railroad ties in May 1992 that formed a retaining wall that went from the rear of their property and turned west into the side yard and that the Temersons later installed railroad ties running parallel to their ties in the side yard. In addition, Lisa Temerson's deposition testimony indicates that they installed the railroad ties and land fill in July or August of 1997 and that the “bug zapper” and bird house were installed thereafter.
The Temersons testified at their depositions that Cardinal Landscaping was their landscaper from 1991 through 2006. Brian Temerson testified that he was never present when the landscapers were working and did not know what portion of the lawn was being cut by them. Lisa Temerson testified that she was present when the landscapers were working and that the landscapers cut the portion of the lawn in front of the vinyl fence in the rear all the way forward to the street. Lisa Temerson also testified that the Scublas would from time to time clean the subject strip of property, fertilize, hand water by hose, weed, pick dandelions, and mow slightly beyond the midpoint line. Lisa Temerson further testified that even after the vinyl fence was installed in the rear lawn area of the midpoint line, the Scublas continued to hand water areas of the front lawn within the Temerson's area of the midpoint line where the sun hit and burned the ground and continued to pick dandelions without any objections from the Temersons. According to Lisa Temerson, prior to the installation of the vinyl fence, the Scublas' grandchildren would regularly play on the lawn in the area of the midpoint strip without any objections from the Temersons.
The attorney for the Scublas requested by letter dated June 22, 2007 that the plaintiffs remove the encroaching vinyl fence and deck as they were impeding the sale of their home and warned that if said structures were not removed within ten days of the letter date, the Scublas would be forced to remove them without further notice at the plaintiffs' expense. The attorney for the plaintiffs responded by letter dated July 2, 2007 informing that the plaintiffs were claiming adverse possession. Anthony Scubla also testified that on July 23, 2009 the portion of the subject vinyl fence in the area between the two properties was torn down by four people that he had hired and that they gained access to the fence through the Scublas' property.
Surveys prepared by a licensed land surveyor, Robert Holzman, and submitted with his attached affidavit dated November 18, 2010 indicate that the in-ground sprinkler heads for 810 Anthony Drive extend up to and loosely demarcate the midpoint line between the side yards of the two properties and that the Temerson's vinyl fence was placed on said line. The surveys also show that the sprinkler heads of 820 Anthony Drive are close to the house and do not extend near to the midpoint line.
Here, the adduced evidence reveals that there was acquiescence for more than the statutory period in the practical location of the boundary line between the Temersons' property and the Scublas' property as demarcated by the sprinkler heads of both properties that were installed in 1991, the westerly portion of the Scublas' rear retaining wall installed in May 1992, and the Temerson's vinyl fence that was installed in 1997 ( see Konchar v. Leichtman, 35 A.D.2d 890, 315 N.Y.S.2d 888 [3d Dept 1970]; Fisher v. MacVean, 25 A.D.2d 575, 266 N.Y.S.2d 951 [3d Dept 1966]; see also Kaneb v. Lamay, 58 AD3d 1097, 872 N.Y.S.2d 224 [3d Dept 2009] ). Notwithstanding any survey determination, this became the true boundary line ( see Konchar v. Leichtman, 35 A.D.2d at 890).
In addition, given the size, character, and location of the disputed parcel, the plaintiffs proved by clear and convincing evidence that the Temersons usually cultivated or improved the disputed midpoint strip ( see Best & Co. Haircutters, Ltd. v. Semon, 81 AD3d at 768;Birnbaum v. Brody, 156 A.D.2d at 409). The proffered proof establishes that the Temersons put in land fill and graded the midpoint strip prior to placing the vinyl fence, their landscapers regularly maintained the grass in the midpoint strip, the Temerson's in-ground sprinklers watered the grass of the midpoint strip, and the Temersons added a deck, underground wiring, and an electric “bug zapper,” and a bird house on posts, all of which sufficiently satisfy the usual cultivation or improvement requirements of RPAPL § 522(1) ( see Birnbaum v. Brody, 156 A.D.2d at 409). The occasional care of the midpoint area by the Scublas does not warrant a different result. The plaintiffs also established by clear and convincing evidence that the possession of the disputed parcel by the Temersons was actual, open and notorious, exclusive and continuous for the required period, and hostile and under claim of right ( see Best & Co. Haircutters, Ltd. v. Semon, 81 AD3d at 768;see also Walling v. Przybylo, 7 NY3d 228, 818 N.Y.S.2d 816 [2006] ). Thus, the plaintiffs acquired title to the disputed parcel by adverse possession (Asher v. Borenstein, 76 AD3d 984, 908 N.Y.S.2d 90 [2d Dept 2010] ).
Regarding the plaintiffs' trespass claim against the Scublas to recover for damages to the vinyl fence, trespass is an intentional entry onto the land of another without justification or permission ( see Long Is. Gynecological Servs. v. Murphy, 298 A.D.2d 504, 748 N.Y.S.2d 776 [2d Dept 2002]; see also Woodhull v. Town of Riverhead, 46 AD3d 802, 849 N.Y.S.2d 79 [2d Dept 2007] ). The adduced evidence reveals that the Scublas tore down the vinyl fence to avoid a claim that they had acquiesced in the establishment of the boundary line by the placement of the fence ( see Hadix v. Schmelzer, 186 A.D.2d 239, 588 N.Y.S.2d 337 [2d Dept 1992] ). However, it was a belated attempt. The Scublas were required to show that they had either a lawful right to enter the plaintiffs' side of the yard or had the plaintiffs' permission ( see State v. Johnson, 45 AD3d 1016, 1019, 846 N.Y.S.2d 671 [3d Dept 2007] ). The Scublas failed to do so. Thus, the plaintiffs are granted summary judgment on said claim.
Although the plaintiffs also seek to recover for private nuisance and treble damages for forcible and unlawful entry pursuant to Real Property Actions and Proceedings Law § 853, the Court notes that said claims were not alleged against the Scublas in the plaintiffs' complaint, only trespass and the resulting property damage. The Court declines to grant relief based on causes of action not alleged in the complaint ( see Richardson v. Bryant, 66 AD3d 1411, 885 N.Y.S.2d 848 [4th Dept 2009]; Dominguez v. Lafayette–Boynton Hous.Corp., 240 A.D.2d 310, 659 N.Y.S.2d 21 [1st Dept 1997] ). Therefore, the plaintiffs' request for summary judgment on said claims is denied. In any event, Real Property Actions and Proceedings Law § 853 provides that “[i]f a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer.” The actions of the Scublas in tearing down a portion of the vinyl fence did not render the plaintiffs “disseized, ejected, or put out of real property in a forcible or unlawful manner” as contemplated by the statute ( seeRPAPL § 853; compare Clinkscale v. Sampson, 48 AD3d 730, 853 N.Y.S.2d 572 [2d Dept 2008] ).
Finally, the plaintiffs' request for dismissal of the Scublas' counterclaims for ejectment, for the removal of the plaintiff's encroaching structures, and for trespass, nuisance and abuse of process is granted inasmuch as it has been determined that the Scublas no longer have ownership rights in the midpoint strip ( see generally Minasian v. Lubow, 49 AD3d 1033, 1035–1036, 856 N.Y.S.2d 255 [3d Dept 2008]; Robarge v. Willett, 224 A.D.2d 746, 747, 636 N.Y.S.2d 938 [3d Dept 1996] ).
Accordingly, the motion by the Temersons for summary judgment dismissing the complaint as against them is granted and the motion by the plaintiffs for summary judgment is granted solely to the extent indicated above. The Court declares that the plaintiffs are the lawful owners of and are vested with an absolute and unencumbered title in fee to the subject midpoint strip of real property.