Opinion
013427/05.
Decided on September 11, 2007.
Rivkin Radler, LLP, Attorneys for Plaintiffs, By: George K. DeHaven, Esq., Uniondale, NY.
John P. Della Ratta, Jr., Attorney for Defendants, Greenvale, NY.
The motion of the plaintiffs for summary judgment on their claim to quiet title and for ejectment, and to dismiss the defendants' claims for adverse possession, is granted. The case shall proceed to trial on the issue of plaintiffs' damages, if any, and defendants' set offs, if any, against such damages.
In this case the three sets of defendants are neighbors who own and occupy adjoining residential parcels on Twin Lawns Avenue in Hicksville, New York. The westerly side/back of each parcel abuts the property of plaintiff RSVL, Inc., which has been the owner since 1996, and which property has been leased to plaintiff Oyster Bay Pump Works, Inc. The plaintiffs' property is commonly known as 78 Midland Avenue, Hicksville, New York.
It is undisputed that as part of renovations to the property, the plaintiffs commissioned a survey in 2003. Insofar as is relevant here, this survey resulted in a tax map, a copy of which is submitted on this motion, which shows an existing fence running roughly north-south and parallel to defendants' westerly boundaries. At this location, the fence is wholly on plaintiffs' land. This matches another map, also submitted, made in 1996 by the same land surveying and engineering firm, which shows the same conditions. It should noted that neither shows any fencing running from any of defendants' properties intersecting the north-south fence at right angles
The 2003 map indicates that the fence lies approximately three feet to the west of defendants' property line, and it is this area, running the length of each defendant's property, that is at issue. The map further indicates that sheds on each property encroach on plaintiffs' property. The current dispute arose when the plaintiffs notified the owners of all properties to the east 14 residential parcels in all, including the defendants' that they intended to remove the old fence and to replace it with a new one on the property line itself, as that line is indicated on the 2003 and 1996 maps. There is no dispute that in March of 2004 Patrick Gaillard, the president and owner of both named plaintiffs, notified all owners, including the defendants, of plaintiffs' intentions, and of encroachments and violations of legal setback requirements.
In some places, not affecting the defendants herein, the fence is shown to actually encroach on neighboring property.
Installation of the new fencing proceeded on the property line, with the exception of four of the abutting parcels, as the owners objected. A meeting took place in 2005 between plaintiffs' president and the owners of these four properties in an attempt to resolve the matter, but did not yield a settlement. This suit, sounding in quiet title and ejectment, was commenced in 2005. The defendants have each counterclaimed in adverse possession. The plaintiffs now move for summary judgment on their claim to quiet title to the disputed areas, and for ejectment of the defendants therefrom.
The dispute with the owners of a fourth parcel has been settled.
By presentation of the 2003 and 1996 survey maps, a 1996 deed for 78 Midland Avenue to RSVL, Inc. from its predecessor in title, and the affidavit of Patrick Gaillard, the plaintiffs have made out their prima facie showing that they are entitled to a declaration that RSVL, Inc. is the owner of the disputed areas, and that the plaintiffs are entitled to possession and to eject the defendants therefrom. The burden on this summary judgment motion thus shifts to the defendants to show that there are issues of fact meriting a trial. See, e.g., Zuckerman v City of New York, 49 NY2d 557 (1980).
In response, the defendants do not claim any right to the disputed area based upon a written instrument, nor do they dispute in any way the accuracy of the maps or the deed to RSVL, Inc. Rather, they rely wholly on their claims of adverse possession. Accordingly, the question becomes whether the proof submitted creates issues of fact with regard to the bona fides of such a claim.
A party seeking to obtain title to real property by adverse possession without resort to written instrument has the burden of demonstrating, by clear and convincing evidence, that the possession was 1) hostile and under a claim of right, 2) actual, 3) open and notorious, 4) exclusive, and 5) continuous for the statutory period of 10 years. DiStefano v Saatchi, 308 AD2d 502 (2nd Dept. 2003); Gerlach v Russo Realty Corp., 264 AD2d 756 (2nd Dept. 1999); Manhattan School of Music v Solow, 175 AD2d 106 (2nd Dept. 1991). Mere possession of the property without a claim or right is insufficient, no matter how long the possession. Soukup v Nardone, 212 AD2d 772 (2nd Dept. 1995).
The party making the claim must show possession by submitting proof that the parcel was "usually cultivated or improved" (RPAPL 522) or "protected by a substantial inclosure" (RPAPL 522). DiStefano v Saatchi, supra.."Reduced to its essentials, this means nothing more than that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period." Brand v Prince, 35 NY2d 634, 636 (1974).
The foregoing authority makes it clear that the adverse possessor's acts, above and beyond simple presence, must be of a character a titled owner would recognize as manifesting a claim to property that was hostile to his own, and that he needed to act if he were to preserve his rights. "The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period." Walling v Przybylo, 7 NY3d 228, 232 (2006), quoting Monnot v Murphy, 207 NY 340, 245 (1913). In more modern terms, the possession must put the owner on notice.
Therefore, a party asserting adverse possession by way of usual cultivation or improvement must show that, during the entire 10-year period, more was done than merely taking reasonable steps to keep the site presentable, as opposed to openly altering the landscape. Substantial and obvious alteration is required. Limited activities such as cutting the grass, raking, clearing debris, and even planting or removing a few trees are thus insufficient. See, Giannone v Trotwood Corp., 266 AD2d 430 (2nd Dept. 1999); Simpson v Kao, 222 AD2d 666 (2nd Dept. 1995); Yamin v Daly, 205 AD2d 870 (3rd Dept. 1994); cf., Walling v Przybylo, supra, at 230-231 [bulldozing, deposit of fill and topsoil, installation of PVC pipe, sufficient]. Even the placement of a structure, such as a garage, is not enough to establish hostile possession by improvement if that structure lies mainly on the claiming party's land and the encroachment on the disputed property is slight. Van Valkenburgh v Lutz, 304 NY 95, 99 (1952).
Similarly, the mere presence of a fence is insufficient. There must be a showing that it was a substantial barrier erected by the party claiming adverse possession, without the consent of the owner; a fence erected by or with the consent of the owner, or its predecessor in title, cannot be utilized by the adverse possessor, because its presence can never serve as an indication of conduct or possession openly hostile to the owner's rights. See, Koudellou v Sakalis, 29 AD3d 640 (2nd Dept. 2006); Mohawk Paper Mills, Inc. v Colaruotolo, 256 AD2d 924 (3rd Dept. 1998); Boumis v Caetano, 140 AD2d 400 (2nd Dept. 1988).
Applying the foregoing to the record before the Court, it is clear that none of the defendants can meet the burden of demonstrating that there is clear and convincing proof of adverse possession sufficient to merit a trial.
In their joint affidavit, the Della Ratta defendants state that they bought their property (lot 390) in 1967. The fence described above was present, and they claim that there also existed a fence on either side of the property "up to the fence in our backyard . . . which effectively made it part of our property." In 1967 a shed was erected, and was replaced twice, in 1983 and again in 2000. They also claim planting, installation of bushes and what might be interpreted as "additional" fencing. They state that they installed a stockade fence "into the metal posts supporting the chain link fence."
The foregoing is patently insufficient under the authority cited above. The plaintiffs' fence cannot count as a "substantial enclosure" by the defendants, and there is no competent proof that other fencing was attached to that fence at right angles for the entire necessary 10-year period. A photograph stated to have been taken in 1994, submitted in a supplementary affidavit by Mary Della Ratta does not show such fencing, but rather only the plaintiffs' fence. Moreover, neither of the unchallenged maps of 1996 and 2003 shows such an enclosure. Notably, such fencing, assuming it was in place for an entire 10-year period before the plaintiffs asserted their rights, still relies on the plaintiffs' fence as part of the enclosure, and the east-west sections are less obviously directed to the plaintiffs to the west than it is to establish boundaries with the neighbors to the north and south.
A survey of the Della Ratta property submitted in plainitffs' moving papers appears to show fencing running east-west up to the plaintiffs' fence, but the survey is dated in 1967.
The stockade fence was admittedly affixed using the plaintiffs' fence for support, and thus could not be viewed by the rightful owner as somehow separate from the earlier fence. With regard to the shed, the unchallenged 2003 map indicates an encroachment of only 1.3 and 1.4 feet on either side that is, some 16 and 17 inches, which is so slight as to be without probative value as an obvious hostile possession. The rest of what is claimed amounts to no more than actions intended to keep the property in a presentable state. Accordingly, the Court must find that no issue of fact is presented of an adverse possession for the statutory period that would satisfy the legal requirements established under decades of New York law.
The Hincapie defendants took possession of their property, lot 391, in January of 1996, which is less than ten years from plaintiffs' notice asserting their rights and the commencement of the present suit. On its face, the Hincapie defendants' claim of adverse possession fails for that reason. To overcome this obvious defect, they advance acts of their sellers, a Mr. and Mrs. Timothy J. Burke. An adverse possessor may employ "tacking" on a predecessor's acts to make up the required period, but this relies on proof that the predecessor intended to and did turn over possession of the disputed portion with a contiguous portion described in the deed. Brand v Prince, supra, at 637; Eddyville Corp. v Relyea, 35 AD3d 1063, 1065 (3rd Dept. 2006).
Here, the evidence in support of their predecessors' own hostile occupancy of the disputed area is the statement that the Burkes cultivated and improved the property "by the planting of flowers, railroad ties installation of sheds, and fencing." However, none of this is specific enough as to time and place to be of any value in determining whether their possession was of a adverse character sufficient for purposes of tacking. There is no affidavit from the Burkes themselves. The Hincapies also rely on a hearsay statement attributed to the Burkes that a shed was "located partly" in the disputed area when they bought their home in 1971. Even assuming the admissibility of the statement, it is insufficient as proof of an adverse possession under the authority noted above. Van Valkenburgh v Lutz, supra. The Court therefore finds that the Hincapies' have been unable to present admissible evidence of tacking such that the 10-year period may be deemed satisfied.
The only other contention worthy of note is the Hincapies' claim that fencing separating their property from the neighbors to the north and south was present when they purchased, which fencing ran up to the plaintiffs' fence, "closing off [the disputed] parcel" from the surrounding area. As with a similar claim by the Della Rattas, this still relies on the plaintiffs' fence as part of the enclosure, does not appear on either of the maps, and is directed to the residences on either side, not to the plaintiffs.
The claim of the Portillo defendants (owners of lot 392) also fails for their inability to demonstrate that they can satisfy the requirement of a 10-year hostile occupancy. They purchased their property in 1997, even later than the Hincapies, and thus must rely on tacking to make up the necessary period. However, they too have not presented admissible proof of their predecessors' hostile occupancy under the authority cited above. Indeed, the only substantive difference in their assertions from those of the Hincapies is that they planted fruit trees in the disputed parcel, but such an act is not sufficient to meet the tests established under New York law ( Simpson v Kao, supra), and does not cure the deficit in the 10-year period in any event. The Court also notes that the 2003 map shows a stockade fence on the Portillos' actual property line, which is of course proof contrary to their assertion that the plaintiffs' fence, lying beyond, could be recognized as the western limit of their property. The Court thus finds that they too have not raised factual issues sufficient to support a claim of adverse possession.
The plaintiffs' motion is therefore granted in its entirety.
The foregoing disposes of the legal claims to the disputed property, but the parties have not addressed, and the Court therefore will not rule on, the issue of damages and set-offs. See, RPAPL 601; RPAPL 1521(1). As this matter is already on the trial calendar, it shall proceed on the issue of damages only, and final judgment may be entered thereafter. However, as the relevant statute provides that two separate judgments may be made in this case, counsel may submit at the present time a judgment declaring the validity and invalidity of the respective claims made by the parties, as established in this order. RPAPL 1521(1).
This shall constitute the Decision and Order of this Court.