Opinion
No. 11719/2007.
10-31-2016
WATERVIEW TOWERS, INC., Plaintiffs, v. 2610 CROPSEY DEVELOPMENT CORP., et. al., Defendants.
Bruce H. Lederman, Esq., atty for plaintiff. Linda S. Agnew, Esq., atty for defendant.
Bruce H. Lederman, Esq., atty for plaintiff.
Linda S. Agnew, Esq., atty for defendant.
KATHY J. KING, J.
Plaintiff, Waterview Towers, Inc. ("Waterview"), commenced the within action for adverse possession pursuant to Article 15 of the Real Property Action and Proceedings Law ("RPAPL"), claiming that it is the owner and has exclusive right to use the southwesterly portion of Centre Place, from the center line thereof, subject to the easement rights of abutting property owners. Additionally, plaintiff claims ownership to any land under 2630 Cropsey Avenue, Brooklyn, N.Y. and 1935 Shore Parkway, Brooklyn, N.Y. to the extent that defendant, 2610 Cropsey Development Corp. ("2610 Cropsey") , claims any rights therein. Based on plaintiff's claims, it seeks an order directing the County Clerk to expunge various correction deeds filed by defendant that include the ownership of Centre Place; an order directing defendant to remove the fence it erected and restore the sidewalk to its previous condition (prior to the erection of the fence) within 30 days, or in the alternative, an order allowing plaintiff to do so, with the cost of said work to be reimbursed by defendant. Plaintiff further requests a hearing on the issue of whether sanctions for frivolous practice should be imposed upon defendant for asserting frivolous counterclaims.
Plaintiff filed an initial summons and complaint in the within action on April 6, 2007. By order dated June 11, 2014, the Court granted plaintiff's oral application to file an amended summons and complaint.
For purposes of this decision, "defendant" shall refer to 2610 Cropsey only, since the action was discontinued as to the City of New York and the State of New York, and the remaining named defendants did not appear or answer.
Defendant, 2610 Cropsey, rejects plaintiff's claim of title, and asserts counterclaims for declaratory judgment determining the rights and legal relations of the parties as regards to Centre Place and Stillwell Street , and monetary damages.
In addition to opposing Plaintiff's claims of ownership to Centre Place, defendant counterclaims for ownership and easement rights to Stillwell Street. The parties dispute whether Stillwell Street and the former Bay 43rd Street are one and the same.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, is a cooperative housing corporation, consisting of two (2) sixteen story buildings ("the cooperative") which together house three hundred and twenty (320) tenant shareholders. The cooperative is located at 2630 Cropsey Avenue and 1935 Shore Parkway, and designated as Tax Block 6933, Lot 55 in Brooklyn, New York. In addition to its residential buildings, the cooperative property includes a landscape gardens, small and large outdoor parking lot, and sitting and playground areas. Plaintiff's predecessor in interest, Anthony J. Contello Housing Co., Inc., acquired Lot 55 in 1959 from Meyer Glick for the development of Contello Towers, a two (2) building Mitchell Lama project. Contello Towers was built in 1963 and converted into plaintiff's private cooperative in 1989 wherein the name of the development was changed to Waterview Towers, Inc.
Both Plaintiff and its predecessor in interest have utilized a strip of real property located on the southwesterly portion of Centre Place ("Contested Property"), adjacent to Lot 55 and opposite Lots 40, 41, 46, 48 and 51 as a private small parking lot for its tenants. The small parking ("Small Parking Lot") is twenty-five (25) feet wide and one hundred and eighty-one (181) feet long and has fifteen (15) parking spaces. Plaintiff accesses the Small Parking Lot by way of a curb cut on 26th Avenue, between Cropsey Avenue and Shore Parkway.
Defendant is a company, owned in equal shares by John Giammona and Francine DiNapoli, and holds title to 2610–2620 Cropsey Avenue, located on Block 6933, Lots 48 and 51. The rear of Lots 48 and 51 abut Centre Place. Defendant acquired title from W & H Burt, Inc. on April 27, 2005 for the development of residential condominiums but later abandoned that plan and considered developing the property as a nursing home or an assisted living facility. Upon acquiring Lots 48 and 51, defendant erected a construction fence, demolished the housing structure on Lot 48, and began parking his vehicle on Centre Place behind Lots 48 and 51.
By letter dated March 15, 2006, defendant advised plaintiff that it owned the whole of Centre Place which included the southwesterly half utilized by the plaintiff as the Small Parking Lot, and demanded that plaintiff stop parking cars in the Small Parking Lot. Defendant, in 2007, erected a gate to block the entrance to Centre Place in order to prevent plaintiff's tenants from using the Small Parking Lot. The police became involved and directed defendant to leave the gate open while the parties pursued their respective legal remedies.
Plaintiff commenced the within action by summons and complaint, dated April 6, 2007. On May 14, 2007, defendant executed and issued a correction deed amending the legal description of Lots 48 and 51 to include ownership of half of Centre Place to the center line. One month later, on June 14, 2007, defendant filed a Verified Answer with counterclaims. Thereafter, over the course of the next two years, the parties engaged in protracted motion practice. On September 13, 2007, defendant moved for an order granting dismissal of plaintiff's complaint pursuant to Civil Practice Laws and Rules ("CPLR") 3213 and summary judgment pursuant to CPLR 3212 on its counterclaims. Plaintiff in opposition, by order to show cause, requested a preliminary injunction enjoining defendant and its agents from interfering with plaintiff's exclusive use of the Small Parking Lot. While the court (Balter, J.), found that defendant met its initial burden establishing entitlement to summary judgment against plaintiff on the issue of ownership of the Contested Property, it denied defendant's motion for summary judgment holding that the opposition raised questions of fact regarding plaintiff's claim for adverse possession, and granted plaintiff's request for a preliminary injunction. Based on defendant's interpretation of Judge Balter's decision, on April 30, 2008, defendant executed and issued a second correction deed to itself changing the legal description for Lot 51 to include the entire length of Centre Place from 26th Avenue to Stillwell Street.
On August 7, 2007, plaintiff served a second identical complaint bearing Index No. 29420/2007 on defendant to cure a potential service defect in the commencement of the first action. By decision, dated January 31, 2008, the court (Balter, J.) granted plaintiff's request to consolidate the instant complaint with a complaint under index number 11719/2007. Defendant filed an amended answer with counterclaims on February 25, 2009.
Thereafter, defendant made two additional summary judgment motions which were denied by Judge Debra Silber on June 7, 2010 and Judge Richard Velasquez on March 14, 2011.
On December 11, 2012, plaintiff moved for summary judgment on its claim of adverse possession and dismissal of defendant's counterclaims. In support of the motion, plaintiff submitted the affidavit of Ronald Bernstein, a member of the Board of Directors of Waterview and President of the Board of Directors ("the Board"). Defendant opposed plaintiff's requested relief arguing that its unbroken chain of title extended to the original subdivision map and that those deeds convey right, title and interest to the whole of Centre Place to defendant. The expert affidavit of Lance R. Pomerantz, Esq., a land title expert, was submitted in support of defendant's opposition. Defendant also cross-moved for an order pursuant to CPLR 6312 requiring plaintiff to provide the required statutory undertaking in connection with the January 31, 2008 preliminary injunction in this matter, or in the alternative, vacating the preliminary injunction. The court (Bunyan, J.) found that the affidavit of defendant's expert raised questions of fact precluding summary judgment and granted defendant's cross-motion to the extent of ordering an undertaking to be posted in the amount of one million dollars ($1,000,000). On or about November 12, 2013, the amount of the undertaking was reduced by the Second Department to two hundred fifty thousand dollars ($250,000).
Adam Vuong, Ly Hua Vuong and Chou Meng Vuong; Eduardo Ortiz and Melinda Ortiz; and 2620 Cropsey Avenue, Inc., are the remaining named defendants and owners of Lots 40, 41, and 46 in Tax Block 6933, respectively, and did not answer or appear. The City of New York ("the City") was also named as a defendant, however, the action against the City was discontinued by stipulation dated November 23, 2010, since the City claims no interest in the Contested Property. The State of New York was named as a defendant, and served a Notice of Appearance, wherein it waived service of all papers and notices of all proceedings except notice of application for discontinuance of the action, referee's report of sale and notice of all proceedings to obtain surplus monies.
Over the course of three weeks, an eleven-day bench trial was conducted wherein the Court granted the respective applications of plaintiff and defendant to conform their respective pleadings to the proof. Plaintiff's claims of adverse possession were limited to the southwesterly half of Centre Place, subject to reciprocal easements, and ownership to any land under 2630 Cropsey Avenue, Brooklyn, N.Y. and 1935 Shore Parkway, Brooklyn, N.Y. to the extent that defendant, 2610 Cropsey, claims any rights therein. Defendant's counterclaims for declaratory judgment were limited as follows:
1.A declaration that it owns the 50' x 57' portion of Centre Place abutting Block 6933 Lot 51;
2.A declaration that it owns the 25' x 57' portion of Centre Place abutting Block 6933 Lot 48 (to the center line of Centre Place);
3.A declaration that, by virtue of the original conveyance of Lots 48 and 51 under a subdivision map, Defendant has indefeasible easement rights to the unobstructed use and enjoyment of the balance of Centre Place;
4.A declaration that it owns the 25' x 138' portion of Stillwell Street abutting Block 6933 Lot 51;
5.A declaration that, by virtue of the original conveyance of Lot 51 under a subdivision map, Defendant has indefeasible easement rights to the unobstructed use and enjoyment of the balance of Stillwell Street; and
6.A declaration that, by virtue of the existence of a portion of Centre Place between Stillwell Street and Bay 44th Street on City maps, and the nonexistence of any proceeding to close, discontinue, or de-map that section of the roadway, Defendant and the general public have indefeasible legal easement rights of access thereto, even if physical access is blocked.
Defendant's counterclaim for monetary damages was expanded to include plaintiff's continuing interference with defendant's development of Block 6933, Lots 48 and 51.
At the conclusion of plaintiff's case in chief, defendant moved for a directed verdict. The Court denied defendant's application for directed verdict and directed the parties to file post-trial motions and memoranda of law. A site visit of the Contested Property was conducted by the Court on December 16, 2014.
EVIDENCE AT TRIAL
For the Court's review and consideration, the parties stipulated into evidence approximately 80 exhibits contained in two (2) volume exhibit book, including pleadings; historical maps, tax maps, and topographical maps; title documents, deeds containing the chains of title of the parties; historical municipal and government documents; correspondence and photographs.
At trial, plaintiff produced four fact witnesses in support of its prima facie case, Ronald Bernstein, Alan J. Rose, Martin Markman, and Boris Ravin . Plaintiff also produced Joseph N. Friedman, Esq., an expert on land titles and William Hershkowitz, a board member of Waterview for the purpose of authenticating business records. Additionally, plaintiff called John Giammona, President of 2610 Cropsey.
The Court shall consider the testimony of this witness, after reserving decision on the admissibility of his testimony at trial.
John Giammona was also called on defendant's case. To avoid a cumulative account of his testimony, the Court shall only summarize Mr. Giammona's testimony provided on his direct case, infra.
On behalf of defendant, John Giammona, testified, together with, Lance R. Pomerantz, an expert in land titles and Donald Franklin, an expert on damages.
SUMMARY OF TESTIMONY
Plaintiff's Direct Case
Ronald Bernstein
Plaintiff provided testimony from Ronald Bernstein ("Bernstein"), a twenty-five (25) year resident, former board member and President of the Board. He stated that the Small Parking Lot has been in the same location since he became a resident in 1989, and has been exclusively used as a parking lot for the rental of parking spaces to tenant shareholders since that time. He indicated that since he moved into the cooperative, a waiting list for parking spaces has always existed and that he received a parking space after thirteen (13) years on the waiting list. Additionally, he stated that the public has never been allowed to park in the Small Parking Lot and usage by tenant shareholders is open and obvious.
Bernstein testified that he resigned as President of Waterview, a week prior to trial.
Bernstein testified that at the time he moved into the cooperative, Centre Place was paved on one side and unpaved on the other side. He stated that the paved portion of Centre Place has lines delineating fifteen (15) parking spaces. He further stated that the unpaved portion of Centre Place consists of dirt and grass. The line where the pavement meets the grassy area is the boundary between the Small Parking Lot and the adjoining properties. His belief as to the location of the boundary line is based on the fact that plaintiff paved one side of the area for a parking lot.
Bernstein testified that plaintiff has been maintaining the Small Parking Lot since 1989, and that plaintiff has a maintenance staff that removes snow from the Small Parking Lot and repairs pot holes as they develop. He further stated that when he was on the Board he instructed the maintenance staff not to clean the unpaved portion of Centre Place because it was owned by W & H Burt, Inc. He stated that based on his knowledge, the maintenance staff performed these duties from the time he moved into the cooperative to the present.
Bernstein testified that based on his knowledge as a former officer of Waterview, the Board never requested permission from defendant's predecessor in interest, W & H Burt, Inc. to park cars in the Small Parking Lot. In fact, he indicated that permission from W & H Burt, Inc. was not required since W & H Burt, Inc. did not own that portion of Centre Place. He further indicated that although the Board did not have friendly relationship with W & H Burt, Inc., the Board received no objection regarding the use of the Small Parking Lot. Bernstein further testified that defendant installed a fence blocking the entrance to the Small Parking Lot, on Rosh Hashanah, and that the Board received no communication from defendant prior to said installation.
On cross-examination, Bernstein acknowledged that there were no records documenting maintenance of the Small Parking Lot from 1989 to 2013 such as snow removal and pothole repair. While a certificate of occupancy exists for eighty-seven (87) parking spaces, he conceded that the existing certificate of occupancy did not include all of the parking spaces utilized by plaintiff, and to his knowledge, plaintiff had not obtained a variance to increase the number of spaces permitted on Block 6933, Lot 55. He further stated that the entrance to the Small Parking Lot is not gated, is openly accessible, and that plaintiff did not put up any sign identifying the paved area on Centre Place as a parking lot. Bernstein testified that cars can enter Centre Place from 26th Avenue by making a left hand turn and from Shore Parkway by making a right hand turn, and going over a curb cut. Bernstein distinguished access to the Small Parking Lot from access to the large parking lot by stating that the large parking lot is gated and access is obtained by a clicker which opens and closes the gate.
Alan J. Rose
Alan J. Rose ("Rose"), also testified on behalf of plaintiff. Rose testified that from 1971 to 2005, he operated a store at 2610 Cropsey Avenue. At that time, defendant's predecessor, W & H Burt, Inc. owned the 2610 Cropsey Avenue. Rose stated he became a resident of Contello Towers in 1972. He stated that when Contello Towers was converted into a cooperative he became a tenant shareholder and was elected a board member in 1995 and later president in 2000. After his term as president, Rose stated that he remained as a board member until 2011. Rose testified that when he owned his store at 2610 Cropsey Avenue, the principals of W & H Burt, Inc. lived above the store and parked their cars in the rear of the building, which was unpaved. Although he was not aware of the street's name when he operated the store, he testified that what is now considered "Centre Place" was the unpaved area where he sometimes parked his car and kids played. In order to access Centre Place, he testified that he had to drive from 26th Avenue onto a dirt road.
Rose testified that he personally observed the paving of Centre Place in 1978. He stated that the superintendent of Contello Towers, Nester Enriquez, supervised the paving and he did not observe the principals of W & H Burt, Inc. supervise any of the paving of Centre Place. Once the paving was completed, markings (strips and numbers) were made for parking spaces. He stated that he observed the tenants of Contello Towers and subsequently tenant shareholders of the cooperative using the numbered spaces on Centre Place from the time it was paved until the present. Rose testified that Contello Towers charged tenants and later the cooperative charged tenant shareholders for parking cars on the paved portion of Centre Place. Beginning in the 1970's, Rose testified that he first observed Contello Towers and then plaintiff shoveling snow and sweeping the Small Parking Lot but he has never observed anyone shoveling snow or maintaining the unpaved area of Centre Place abutting the Small Parking Lot.
Rose testified that upon moving into the cooperative he observed the erection of the fence that segregates the Small Parking Lot from the large parking lot. He stated that Contello Towers erected the fence which started on Cropsey Avenue and runs along the boundary of 2620 Cropsey Avenue and ending at plaintiff's property on the side. The fenced in area is not open to the general public. He further stated that the fence was maintained by Contello Towers, and security guards patrolled the grounds at the cooperative to keep the premises within the fenced boundaries for the exclusive use of the tenants.
Rose further testified that during his time as an officer and a board member of Waterview he did not ask permission from the W & H Burt, Inc. to use Centre Place. Additionally, Rose testified that he never observed a friendly relationship between the residents or management of the cooperative and the principals of W & H Burt, Inc.
On cross-examination, Rose testified that in the 1970's there was a sign put up on the gate separating Centre Place from the large parking lot which identified the area as parking for Waterview, however, he does not recall what the sign said and prior to 2004 he does not recall any signage being posted in the Small Parking Lot. Finally, Rose testified that prior to 1989 he observed a curb cut on 26th Avenue, but he does not know when the curb cut was created or who created it.
Martin Markman
Plaintiff produced Martin Markman (‘Markman"), a member of the board of the cooperative. Markman testified that he moved into Contello Towers in 1962 and when Contello Towers was converted into a private cooperative, he became a tenant shareholder and was elected the first president of the cooperative's Board where he served for ten (10) years. In 1999 he moved from the cooperative and presently sub-leases his apartment.
Markman testified that in the late 1970's he was asked by the Board of Contello Towers to research Centre Place in regards to creating the Small Parking Lot. He obtained a map of the area which showed that Centre Place was an unmarked street. After reporting his findings, the Board of Contello Towers made the decision to pave half of Centre Place, and created the Small Parking Lot by drawing lines and numbering fifteen (15) parking spaces. After the Small Parking Lot was created, Markman testified that he was one of the first tenants to lease a parking space in the Small Parking Lot in 1978. He paid rent for his parking space in the Small Parking Lot first to Contello Towers and then to plaintiff. Sometime after 1989 he moved into the large parking lot where he continued to pay rent.
Markman testified that as president of the newly formed board of the cooperative, it was his understanding that the Small Parking Lot was owned by plaintiff. During his tenure as president and under his direction, he indicated that plaintiff maintained the Small Parking Lot by sweeping, providing snow removal and re-painting of lines (marking parking spaces) that had faded. He further testified that only tenants with a lease were allowed to park in the Small Parking Lot and stated that stickers would be put on the car windows of people who parked in spaces without a lease. He also testified that use of the Small Parking Lot was continuous up through the period of his occupancy, and that the principals of W & H Burt, Inc., were aware of the rental of the parking spaces and did not object to such use. Additionally, he indicated that from the time the Small Parking Lot was paved until he moved in 1999, he never observed defendant's predecessor in interest, W & H Burt, Inc. maintaining the Small Parking Lot.
According to Markman, Centre Place dead ends at a fence, and on the other side of the fence there is a playground and community open space. Markman testified that since 1962 the area behind fence at the end of Centre Place was used as a playground. He stated that during his tenure as president no demand was made by any third party to stop using the playground or any part of the land within the fenced in boundaries. Markman further testified that during his presidency plaintiff was never sued by W & H Burt, Inc.
On cross-examination, Markman testified that he believed that Contello Towers and Waterview kept a log of the license plate numbers and the identities of the make and model of the vehicles in which "parked illegally" stickers were placed, however, upon further questioning he stated that he did not know where the logs were kept or if they ever existed. Markman testified that parking in the Small Parking Lot was exclusively for tenant shareholders of Waterview and there was no effort on the part of plaintiff to conceal the fact that they were renting parking spaces on Centre Place to their tenant shareholders.
Boris Ravin
Plaintiff provided testimony from Boris Ravin ("Ravin"), a tenant shareholder of Waterview since 2000. Ravin testified that prior to him obtaining a parking space, he was on a waiting list for thirteen years before he got his parking space in the Small Parking Lot. Ravin went on assert that his parking spot has improved his quality of life and he will not give up his parking space voluntarily.
Joseph N. Friedman
Joseph N. Friedman ("Friedman"), an attorney and land title expert with more than twenty years of experience in complex land title disputes, testified as a land title expert. Relying on tax maps, photographs, and aerial photographs, Friedman identified Centre Place as it presently exists today as the area known as "Centre Place" beginning at the entrance of 26th Avenue and extending to the point where it dead ends at a fence, which was the former Bay 43rd Street (now closed) or Stillwell Street. He testified that in determining the status of Centre Place, he reviewed street reports from Superior Data Services, Inc. ("Superior Data"), tax maps, topographical maps of the City of New York, case law together with the chain of deeds going back from the subdivision in 1858 to present, the Tunis Stryker Map from 1855 to 1895, the 1880 and 1890 Robinson Atlas Maps, and 1929 Brooklyn Map located at www.historicmapworks.com.
Friedman testified that the certified street reports he received from Superior Data indicated that Centre Place is not a mapped street on the filed city plan, therefore, he concluded that the City of New York has no title interest in the street. A second street report was requested of the streets adjoining Centre Place, Cropsey Avenue, i.e., Bay 44th Street, 26th Avenue, Bay 43rd Street and Shore Parkway to determine the status of Bay 43rd Street. Based on the second report, Friedman found that Bay 43rd Street had been closed. Friedman stated that the topographical maps he reviewed are official maps of the City of New York which show street layouts, and explained that straight lines on such maps depict official streets maintained by or owned by the City of New York, and dashed lines depict private streets or easements. He identified "Centre Place" as it presently exists as an area drawn with dashed lines between Hubbard and Bay 43rd Streets, two streets no longer existing. Based on his review of the street reports and topographical maps, he opined that Centre Street is a private street.Friedman testified that Centre Place is not a paper street because it is open and in use. He explained that the term "paper street" refers to property or lots sold pursuant to a proposed subdivision map, which are depicted on paper but not open and in use. Friedman further explained that anybody buying a property on a proposed subdivision map would have an easement into all the streets abutting their lot to the nearest public highway, subject to the rights of others into that street. Once a street shown on a proposed subdivision map becomes open and in use, it is no longer a paper street, it is an actual street.
The deed dated April 27, 2005 from W & H Burt, Inc. conveying Lots 48 and 51 to 2610 Cropsey defendant were produced for Friedman's review at trial. Friedman testified that based on the metes and bounds description of Lots 48 and 51 contained in the April 27, 2005 deed, which contained the words "to the center line thereof" defendant's rights to Centre Place were limited to one half of Centre Place. Based on this deed, Friedman opined that defendant did not have fee ownership rights in the other half of Center Place not abutting Lots 48 and 51. Friedman noted that based on his review of the deeds W & H Burt, Inc.'s predecessor in interest to Lot 51 was the City of New York who acquired title as a result of a tax lien foreclosure. According to Friedman, the deed from the City of New York dated June 4, 1954 only contained a tax lot description and did not contain rights to Centre Place.
Friedman also testified that he reviewed ACRIS, the City of New York's recording system for documents from 1968 to the present. Upon reviewing ACRIS, he indicated that two correction deeds dated May 14, 2007 and April 30, 2008, respectively, were filed and signed by John Giammona, President of 2610 Cropsey. The correction deed dated May 14, 2007 attempted to correct the April 27, 2005 deed, and the April 30, 2008 attempted to correct the May 14, 2007 deed by conveying the entire width of Centre Place to defendant. However, he explained that John Giammona as grantee, cannot correct an alleged mistake in the deed which conveyed title to 2610 Cropsey without having the original grantor, W & H Burt, Inc. sign it, therefore the correction deeds did not effectuate a transfer of any interest. Friedman opined that while defendant does not have a fee interest in Centre Place, defendant does have an easement over Centre Place to 26th Avenue, which is currently the nearest open public highway. Friedman opined that 26th Avenue was the nearest open public highway to Lot 51 after 1960 because the owner of Lot 51 at the time, W & H Burt, Inc., filed an application for a building permit to put a curb cut on 26th Avenue. While the application of W & H Burt, Inc. was denied, he explained that the application, as submitted, shows the installation of a curb cut in the northerly half of Centre Place and in front of Lots 48 and 51 running twenty-five (25) feet up until the centerline of Centre Place. He further indicated that the application shows Centre Place as an easement with the curb cut going six feet on each side of the center line. Friedman further stated that when the curb cut was ultimately installed, the need for the owner of Lot 51 to cross over any portion of Lot 55 to reach Bay 44th Street was eliminated because there was direct access to 26th Avenue, the nearest open public highway.
Friedman testified that the practical location doctrine deems the boundaries on Centre Place to be the centerline as used by the parties. He explained that the practical location doctrine creates a practical boundary based on the acquiescence of the parties for the statutory period and is deemed to be the actual boundary line of the property regardless of what the calls are in the particular deeds to the properties of the parties. He stated that the centerline of a private road is the midline between the boundary. In the case of Centre Place, Friedman testified that the original usage of the Contested Property has changed and that there are lots that were reconfigured in different directions and houses built on them. He cited the curb cut application of W & H Burt, Inc. which showed that Centre Place consisted of two 25' X 25' halves each and is consistent with defendant's deed dated April 27, 2005 which includes the southerly twenty-five (25) feet of Centre Place for its whole length. Additionally, Friedman cited the agreement between the owner of Lot 46, Norge Stone Company, Inc., and Contello Housing Company, Inc. ("Norge Stone easement") which show Centre Place as a filed map street approximately one hundred and eighty (180) feet in length and is not shown on the filed city plan. He stated that the parties to the Norge Stone easement mutually agreed to create an easement for a driveway twelve (12) feet wide for ingress and egress of motor vehicles and a passageway for pedestrians and owners of the premises. Based on the historical course of dealings of the property owners abutting the Contested Property, Friedman testified that according to the practical location doctrine, the southwesterly half of Centre Place is the midline between the boundary abutting plaintiff's property on Lot 55. Further, Friedman testified that if a line was drawn down Centre Place today there would be a southerly and southwesterly half, the southwesterly half of Centre Place would abut plaintiff's property.
In regards to Stillwell Street, formally known as Bay 43rd Street, Friedman testified that he received a second street report from Superior Data for Cropsey Avenue, Bay 43 and 44th Streets, and 26th Avenue, the streets adjoining Center Place, and upon his review he determined that Bay 43rd Street is closed. He explained that Meyer Glick, when developing the Mitchell Lama housing, entered into an agreement with the City of New York to close Bay 43rd Street which was located on southern boundary of the lots depicted on the Tunis Stryker Map, running from the Gowanus Bay on the west, through Centre Place, to Mill Road on the east. According to Friedman, Bay 43rd Street was conveyed to plaintiff's predecessor in interest, Contello Housing Company, Inc. by deed dated June 23, 1959. However, since Bay 43rd Street was designated to closed, any rights that the abutting property owners had in Bay 43rd Street was cut off.
Finally, Friedman opined that with the passage of time, the parties along Centre Place acquired exclusive rights to park on the side of Centre Place abutting their respective properties. Thus, Friedman concluded that because Centre Place is a private street, the Contested Property, is subject to adverse possession.
On cross-examination, Friedman reiterated that he reviewed all documents that had been provided to him by plaintiff's attorney and submitted into evidence. However, he did not order street reports of the historical origins of Centre Place, did not review the title policy to Waterview Towers, and could not get the deed chains for other lots because they were unavailable. He also stated that the four tax maps he reviewed from www.historicmapworks.com, regarding Centre Place, are not documents generated by government agency. Friedman testified that the first deed out the subdivision, Stryker to Edin, only conveyed a portion of Centre Place.
He stated that he did a chain of title search on ACRIS for the lots located on the northwest side of Center Place, which included Lots 51, 48, 40, 41, and 45, but admitted that ACRIS does not provide a complete chain of title dating back to the original conveyance of the lots. Friedman acknowledged that that the City released its rights to northwest side of Centre Place and 26th Avenue pursuant to the Norge Stone easement. Finally, Friedman testified that he was not retained to provide an expert opinion as to ownership rights in Bay 43rd Street or Stillwell Street.
William Hershkowitz
To authenticate plaintiff's parking leases and applications for paving and repairs to the Small Parking Lot, plaintiff produced William Hershkowitz ("Hershkowitz"), a member of the Board. Hershkowitz was not able to authenticate plaintiff's parking leases because the leases were incomplete. However, Hershkowitz was able to authenticate various applications, proposals, and invoices for the Small Parking Lot. He testified that plaintiff's documents show that Contello Towers, now Waterview Towers, Inc., made a proposal to the City of New York Department of Buildings to pave its Small Parking Lot and subsequently made a request to make repairs to its Small Parking Lot.
Defendant's Direct Case
John Giammona
John Giammona ("Giammona"), President of 2610 Cropsey, testified in opposition to plaintiff's claim of adverse possession and in support of 2610 Cropsey's affirmative defenses and counterclaims. Giammona testified that his initial intent when acquiring Lots 48 and 51 in 2005 was to build a mixed use seven story condominium. However, he stated that due to a downturn in the economy around 2007, he considered developing Lots 48 and 51 for a higher and better use, such as, developing an assisted living facility. In 2008, 2610 Cropsey consulted with an architect and determined that a development of this magnitude would benefit from having its own streets for access, and identified Centre Street and Stillwell Street as points of access. According to Giammona, the project did not go forward because of the indefinite status of Centre Place, lack of the ingress and egress to the property, and the within litigation. Giammona also testified that upon acquisition of Lots 48 and 51, he paid taxes for the whole of Centre Place (from Stillwell to Bay 44th Street).
Giammona testified that upon closing title on Lots 48 and 51 in 2005, a review of his title insurance policy which contained a condemnation clause, prompted him to investigate the status of the streets surrounding Lots 48 and 51. As part of his investigation, Giammona stated that he requested the status of the streets abutting Lots 48 and 51 from the Brooklyn Borough President's Office. In response, Chief Engineer Alvin Goodman by letter dated January 17, 2006, indicated that the City of New York does not have title or interest in Centre Place. A Board of Estimate calendar dated December 1, 1977 was also annexed to the letter. According to Giammona, a resolution passed by the Board of Estimate showed that the City released its interest in portions of Centre Place. Giammona further testified that in 2006 his investigation included a review of the Tunis Stryker Map, the Robinson Atlas Map, the Kings County Map and deeds in 2610 Cropsey's chain of title. As a result of his investigation and in consultation with legal counsel, he concluded that more property came with the purchase of Lots 48 and 51 than what was actually insured by his title company. Giammona testified that the deeds in 2610 Cropsey's chain of title to Lot 51 established its ownership interests and its entitlement to an easement was based its ownership of Lot 48.
After discussing this matter with his title company, Giammona testified that his title company prepared two correction deeds which he executed. As amended, the correction deed included half the bed of Centre Place behind lots 48 and 51. Relying on Judge Bruce Balter's January 31, 2008 decision, he testified that the second correction deed was issued on August 7, 2008 and deeded 2610 Cropsey 25'X181' portion of Centre Place, from 26th Avenue to Stillwell Street. He indicated that this is the same area that is the subject of plaintiff's adverse possession claim. According to Giammona, it was his idea to file the correction deed, because "[he] felt that what was on record was incorrect."
Giammona testified that Centre Place as it exists today is a filed map street, extending from 26th Avenue to Stillwell Street onto Bay 44th Street based on the metes and bounds description contained in the historical Tunis Stryker Map. He further testified that based on these maps abutting land owners and possibly the general public have easement rights to Centre Place.
Giammona testified that it appeared that W & H Burt, Inc., permitted plaintiff to park on the Small Parking Lot, and acknowledged that he knew of no written instrument from his predecessor in interest, W & H Burt Inc., granting permission to the plaintiff to utilize a portion of Centre Place for parking nor, was he aware of any conversations between W & H Burt, Inc. and plaintiff.
Giammona testified that on May 5, 2006, he sent a letter to plaintiffs indicating that he is the owner of Centre Place and requesting that plaintiff stop parking cars on his property. Giammona further testified that in September 2007 he closed Centre Place, by placing a fence at the entry of Centre Place from 26th Avenue at the curb cut to protect his property.
On cross-examination, Giammona admitted that defendant does not have a claim to ownership to the entirety of Centre Place or former Bay 43rd Street and that defendant's original claim based thereon was wrong. He also admitted that the correction deed dated April 30, 2008 was wrong. Giammona also acknowledged on cross-examination that he disagrees with the opinion of his expert that Lot 48 did not have full street rights to Centre Place. According to Giammona, defendant's entitlement to full street rights to Centre Place is based on its ownership of Lot 48 and the deeds in its chain of title. He disagrees with his expert's testimony that plaintiff is entitled to a portion of the closed and discontinued Bay 43 Street. According to Giammona, the entirety of Stillwell Street is connected to Lot 51. In this regard, he maintains that as of 1959 Bay 43rd Street no longer existed, but, Stillwell Street is still in existence. Consistent with the opinion of his expert, he indicated the public had easement rights over Centre Place.
Lance Pomerantz
Defendant produced Lance Pomerantz ("Pomerantz"), an attorney and land title expert, in support of its counterclaims for declaratory judgment and monetary damages.
Pomerantz testified that plaintiff has not met its burden of proof to establish adverse possession over the 25'x181.2' portion of Centre Place used as plaintiff's Small Parking Lot. In addition to testifying that plaintiff did not meet the statutory requirements for establishing adverse possession, Pomerantz indicated that where an adverse possession claim is not based on written instrument, the claimant must also show either usual cultivation or improvement of the parcel or substantial enclosure of the parcel being claimed. He opined that the paving of the street is consistent with its character as a street and wouldn't be an adequate indication of improvement for adverse possession purposes. He further stated that there is no evidence that plaintiff enclosed any portion of Centre Place.
Citing the language "to the whole of Centre Place," contained in the original conveyance out of the subdivision from Abraham Stryker to Rose Enin, Pomerantz opined that defendant's chain of title to Lot 51 is unbroken and that defendant has fee ownership of the full width of Centre Place abutting Lot 51 and portion of Stillwell Street abutting Lot 51. Pomerantz acknowledged that defendant's chain of title for Lot 51 included a tax lien foreclosure deed from the City of New York to defendant's predecessor in interest, W & H Burt, Inc. in 1955. However, he testified that 2610 Cropsey's rights to Centre Place and Stillwell Street were not "cut off" by said deed, since its interest in the streets were derived from the original conveyance from the subdivision. Additionally, he testified that although the deed from W & H Burt, Inc. to 2610 Cropsey contained a "half-streets" clause to Centre Place, that clause does not negate the language contained in the original conveyance from the subdivision, the Abraham Stryker to Rose Enin deed, which conveyed of "the whole of Centre Place". He indicated that there is a presumption that the seller in a particular deed is selling all of the right, title and interest that they own in connection with a parcel, including their interest in the adjoining streets, unless they explicitly reserve title to that street or particular interest. Pomerantz stated that there was no such reservation by W & H Burt, Inc.
As to Lot 48, Pomerantz further testified that defendant's chain of title establishes that it has fee ownership rights to the center line of Centre Place abutting Lot 48.
Pomerantz testified that Centre Place is depicted as a mapped street on the Tunis Stryker Map, the 1880 Map of Kings County, the 1890 Robinson's Atlas Map and the 1939 Tax Map. Based on this classification, Pomerantz testified that defendant has unrestricted easement rights over the full width of Centre Place, which are not extinguished by plaintiff's claim of adverse possession to Centre Place. He opined that parking cars perpendicular on Centre Place has interfered with the easement rights of defendant.
In considering the applicability of the paper street rule to defendant's ownership and easement rights in Centre Place, Pomerantz opined that defendant has easement rights over the full length and width of Centre Place, regardless of the paper street rule, since "paper" easements attach to the lots in a subdivision at the time the lots are conveyed, and if the street becomes open for use, easement rights remain unchanged. According to Pomerantz, defendant has unrestricted rights over all of the roads on the original subdivision map which includes the entirety of Centre Place and Stillwell Street, regardless of access to a public highway.
In regards to Stillwell Street, Pomerantz testified that Stillwell Street appears as an open mapped street prior to the incorporation of New York City and that he is unaware of proceedings instituted by the City to de-map or condemn Bay 43rd or Stillwell Street. He indicated that there is no evidence in the record to substantiate that former Bay 43rd Street and Stillwell Street are one in the same. Further, the deed between City of New York and William and Harry Burt , dated April 10, 1956, grants defendant only rights described in the deed. Pomerantz further testified that only an original grantor can correct a deed.
On June 1, 1959, William Burt and Harry Burt incorporated as W & H Burt, Inc.
On cross-examination, Pomerantz also reiterated that Centre Place is a mapped street. While Pomerantz stated that he did not know what the dashed lines meant on a topographical map, he indicated that Centre Place is a public street since it is depicted on the 1939 Tax Map and the 1890 Robinson Atlas Map, both before and after the incorporation of the City of New York. After further inquiry, Pomerantz then stated that Centre Place is a private street subject to public right. Upon presentation of the topographical map received from the Borough President's Office for the Borough of Brooklyn, Pomerantz conceded that the area in dispute was shown in dashed lines, not in solid line, contrary to the representation made in his March 21, 2013 affidavit in support of defendant's opposition to plaintiff's motion for summary judgment.
Pomerantz reiterated his view that Centre Place continues past the dead end on Block 6933 and extends southeasterly on 26th Avenue. He further stated that he disagrees with the conclusion contained in the letter dated January 17, 2006 from the Brooklyn Borough President's office because it does not cite a condemnation order. Pomerantz maintained that while Centre Place comes to physical dead end, the legal interests that defendant has in the street continues to extend south based on the 1939 Tax Maps and 1880 Robinson Atlas Map. However, upon further inquiry, he admitted that the land south of Bay 43rd Street was not shown on the Tunis Stryker Map, but he stated that 2610 Cropsey did not derive its rights to such land from the Tunis Stryker Map, but rather from its capacity as a member of the public.
Finally, Pomerantz conceded that his opinion that land acquired based upon a subdivision map has easements over all the roads in the subdivision map, and not just the adjoining roads, is contrary to the prevailing law. He indicated that 2610 Cropsey has easement rights over the portion of Centre Place south of Bay 43rd and Bay 44th Streets deriving from the usage rights of the public.
Donald Franklin
Defendant provided testimony from Donald Franklin ("Franklin"), a damage expert, to calculate defendant's damages. Franklin testified that in evaluating defendant's damages, he assumed that defendant owned the part of Centre Place in dispute and calculated defendant's monetary loss for lack of ability to develop its property during the last eight (8) years. Thus, Franklin testified that defendant's damages flow from 2006. However, he testified that defendant, 2610 Cropsey could build on Block 6933, Lots 48 and 51 absent access rights from Centre Place and in his calculations he did not consider the cost of parking for the project.
CLAIMS OF PARTIES TO CENTRE PLACE
In order to determine the claims of the respective parties, the Court, as a threshold matter, must consider the application of the maps and deeds.
It is undisputed that the historical origins of Centre Place can be traced back to the "Map of Land of Heirs of Tunis Stryker" a subdivision map dated May 24, 1985. According to this subdivision map, Centre Place is a mapped street that runs in a north to south direction from Hubbard and Stillwell Streets. At various times in the 19th century, Robinson's Atlas of Kings County, New York ("Robinson's Atlas") promulgated official maps of Kings Count, which were compiled from official records, private plans, and actual surveys, and are recognized as authoritative. Two such maps, dated 1880 and 1890, were admitted into evidence. The 1880 and 1890 Robinson Atlas Maps also show Centre Place as a mapped street.
Notwithstanding Centre Place's designation as a mapped street, the parties dispute whether Centre Place is a public or private street.
It is well settled law that a street becomes a public street by dedication or use (Matter of Hillelson v. Grover, 105 A.D.2d 484, 485 [1984] [‘A highway or street located within the geographical limits of a town may become a town highway or street either by dedication or use’]; Matter of Hillelsn v. Grover, 105 A.D.2d 484, 485 [1984] ; Romanoff v. Village of Scarsdale, 50 AD3d 763, 764 [2008] [internal quotation marks and citations omitted] [requires ‘a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act on the part of the relevant public authorities adopting the highway, or use by the public coupled with a showing that the road was kept in repair or taken in charge by public authorities']; Perlmutter v. Four Star Dev. Assoc., 38 AD3d 1139, 1140 [2007] ; see Romanoff v. Village of Scarsdale, 50 AD3d at 764 ; Matter of Desotelle v. Town Bd. of Town of Schuyler Falls, 301 A.D.2d 1003, 1003–1004 [2003] ; Town of Lake George v. Landry, 96 AD3d 1220, 1221 [2012] ; accord Matter of Jasinski v. Hudson Pointe Homeowners Assn., 124 AD3d 978, 979 [2015] ; see also Matter of Ignaczak v. Ryan, 79 AD3d 881, 882 [2010] ). There is no evidence before the Court that Centre Place was dedicated for public use or used by the public. Although the historical maps and various tax maps show Centre Place as a mapped street, these maps are insufficient to support a finding that Centre Place is a public street.
Plaintiff's expert, Friedman, testified credibly that Centre Place is a mapped private street on the topographical map which shows Centre Place drawn as an area with dashed lines between Hubbard and Bay 43rd Streets. By contrast, defendant's expert, Pomerantz, testified that he based his opinion that Centre Place is a mapped public street on the fact that the City took no action to close or condemn Centre Place. The Court finds the testimony of defendant's expert is unsupported by the evidence and simply incredible. Pomerantz, an expert who is also an officer of the court, admitted that the interpretation of the topographical map as it relates to Centre Place contained in his affidavit in opposition to plaintiff's motion for summary judgment was wrong. In that affidavit, Pomerantz represented that the disputed area is depicted by straight lines which would support a finding that Centre Place is a public street. On cross-examination, Pomerantz admitted that Centre Place is in fact depicted with dashed lines indicative of a private street. In fact, Pomerantz acknowledged that had this misstatement of fact not occurred, the plaintiff's motion for summary judgment may have been granted.
In further support of the finding that Centre Place is not a mapped public street, Friedman credibly testified that the City has no title based on the certified street reports which show that Centre Place is not a mapped street on the final street plan. Defendant failed to rebut this showing. In December 2005, President of 2610 Cropsey, Giammona made a request to the Brooklyn Borough President's Office for the official street status of Centre Place and Stillwell Street. In response, Alvin S. Goodman, PE, Chief Engineer of the Office of the Brooklyn Borough President by letter dated January 17, 2006 stated the following:
"According to the records maintained by the Borough of Brooklyn's Topographical Bureau, [the subject] segment of Centre Place, a dead end on Tax Block No. 6933 and extending southeasterly from 26th Avenue, is neither shown on the City Map nor did the City or its predecessors acquire title or interest for street purposes. However, it appears on a map titled "Map of Land of Heirs of Tunis Stryker Deceased situate in the Town of Gravesend, County of Kings"
Mr. Goodman annexed to the January 17, 2006 letter a copy of the Minutes of the Board of Estimate Meeting dated December 1, 1977. Both Pomerantz and Giammona dismiss the conclusion rendered in the letter from the Brooklyn Borough President's Office, and instead interpret the Minutes of the Board of Estimate Meeting as evidence that the City released a portion of Centre Place, and that Centre Place and Stillwell Street are filed mapped streets on the Tunis Stryker Map. Significantly, contrary to the interpretation of defendant and its expert, the letter dated January 17, 2006 supports Friedman's conclusion that Centre Place is a mapped private street. Additionally, the Court notes that the City stipulated to have the instant action discontinued against it, thereby supporting the finding that it did not hold an interest in the Contested Property.
Based on the credible weight of the evidence, the Court finds that Centre Place is a private, mapped street.
The Court further finds that based on a review of the 1880 Robinson Atlas Map, Centre Place is not a paper street (see generally Wysocki v. Kugel, 307 N.Y. 653 [1954] [a paper street is one which was never laid out, dedicated or used]; Brous v. Smith, 304 N.Y. 164, 167 [1952] [paper streets are streets that are designated on a map, but not physically in existence]; O'Hara v. Wallace, 83 Misc.2d 383, 384 [1975], modified on other grounds 52 A.D.2d 622 [1976] [a paper street in an undedicated street on a filed map] ). Consistent with the opinion of plaintiff's expert, a comparison of the Tunis Stryker Map and 1880 Robinson Atlas Map demonstrate that Centre Place was open and in use as of 1880. The opinion of defendant's expert that a street (Centre Place) does not have to be open and in use to convey easement rights to adjoining lot owners is incredible based on his contradictory and inconsistent testimony.
The Court finds that plaintiff holds no ownership interest in Centre Place by deed, pursuant to the April 6, 1959 deed that transferred the subject property from Glick to Contello Housing Company since all right, title and interest in the land lying in the roadbed of Centre Place was specifically excepted. (see Moore v. City of Saratoga Springs 296 A.D.2d 707, 709 [2002], citing Terry v. Chandler, 16 N.Y. 354, 355–356 [1857] ).
Further, Defendant's contention that it has an ownership interest in Centre Place deriving from the subdivision deed is meritless. The evidence shows that the City took title to Lot 51 by deed dated June 4, 1954 deed in a tax foreclosure proceeding, with no mention of the transfer of the land in the roadbed of Centre Place abutting that lot. Thereafter, Lot 51 was conveyed to the Burt Brothers pursuant to a deed dated April 10, 1956, which similarly made no reference to any interest in the abutting streets, Defendant's expert, Pomerantz, testified that defendant's ownership interest in "the whole of Center Place" was not cut off by the tax lien foreclosure deed from the City to defendant's predecessor in interest, since the chain of title prior to the tax deed included the ownership interest of that segment of Centre Place. Pomerantz opined that the boilerplate "half-streets clause" contained in the deed to defendant does not negate the explicit grant of street rights to Centre Place based on the unbroken chain of title from the original grant of the property from the subdivision to the defendant's 2005 acquisition thereof. Pomerantz testified that "tax deeds have been construed to include the right, title, and interest of the prior assessed owner.
By contrast, Friedman testified that the City took title to the tax lot only, without any street rights. As a result, Friedman opined that W & H Burt, Inc. acquired no street rights to convey to defendant. Friedman further testified that with respect to the transfer of title from W & H Burt, Inc. to defendant, the "half streets clause" in the deed conveyed twenty-five (25') feet of the fifty (50') feet width of Centre Place. Friedman opined that street rights are not conveyed by deeds that do not specifically reference them, even if earlier deeds in the chain of title did reference them. The Court finds that Friedman's opinion, consistent with the documentary evidence, establishes that the deed from W & H Burt, Inc. to defendant is conclusive of what is intended to be conveyed and was conveyed.
Since the Court has determined that Centre Place is a private, mapped street, and that plaintiff has no ownership interest by deed in Centre Place, the Court now turns to the issue of whether plaintiff acquired title to that portion of Centre Place upon which the Small Parking Lot is located pursuant to the doctrine of adverse possession.
ADVERSE POSSESSION
It is well established that "the grantees of lots abutting a street on a filed map are entitled to have the land so demarcated remain as a street forever, absent their abandonment, conveyance, condemnation, or adverse possession" (M. Parisi & Son Constr. Co., 21 AD3d at 456 ; accord Bogan, 278 A.D.2d at 264–265, citing Fischer v. Liebman, 137 A.D.2d 485, 487, [1988] ; Gerbig v. Zumpano, 7 N.Y.2d 327 [1960] ).
To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least ten years) (see e.g. Walling v. Przybylo, 7 NY3d 228, 232 [2006], citing Belotti v. Bickhardt, 228 N.Y. 296, 302 [1920] ; accord Ray v. Beacon Hudson Mt., 88 N.Y.2d 154, 159 [1996] ; East Hampton Livestock v. Fleming, 53 AD3d 641, 643 [2008] ; Fatone v. Vona, 287 A.D.2d 854, 856–857 [2001] ; Oistacher v. Rosenblatt, 220 A.D.2d 493, 494 [1995] ). "Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely" (RPAPL former 521.4). Further, the character of the possession must be such "that [it] would give the owner a cause of action in ejectment against the occupier" (Brand v. Prince, 35 N.Y.2d 634, 636 [1974] ). "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, 7 NY3d at 232, citing Monnot v. Murphy, 207 N.Y. 240, 245 [1913] ). Because the acquisition of title by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence (see e.g. Walling, 7 NY3d at 232 ; Ray, 88 N.Y.2d at 159 ; Van Valkenburgh v. Lutz, 304 N.Y. 95, 98 [1952] ).
The Court notes that in 2008, the New York State Legislature enacted significant changes to the Real Property Actions and Proceedings Law as it pertains to adverse possession (see generally CSC Acquisition–NY v. 404 County Rd. 39A, 2011 N.Y. Misc. LEXIS 559, 19–20 [2011], affd 96 AD3d 986 [2012] ). Since this action was commenced on April 6, 2007, plaintiff's claim is governed by the standards applicable before the amendments.
Hostile and Under a Claim of Right
It is well settled that:
"A plaintiff is not required to show enmity or specific acts of hostility in order to establish the element of hostility (see, Katona v. Low, 226 A.D.2d 433 [1991] ; Kappes v. Ruscio, 170 A.D.2d 743 [1996] ). Rather, all that is required is a showing that the possession constitutes an actual invasion of, or infringement upon, the owner's rights (see, Weil v. Snyder, 25 A.D.2d 605 [1991] ). ‘Consequently, hostility may be found even though the possession occurred inadvertently or by mistake ...’ (Katona v. Low, supra, at 434; see, Bradt v. Giovannone, 35 A.D.2d 322 [1970] )."
(Greenberg v. Sutter, 257 A.D.2d 646, 646–647 [1999] ). "Moreover, ‘hostility will be presumed if the use is open, notorious and continuous for the full 10–year statutory period’ " (Fatone, 287 A.D.2d at 856, quoting Birkholz v. Wells, 272 A.D.2d 665, 666 [2000] ). Stated differently "[a] rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another (Estate of Becker v. Murtagh, 19 NY3d 75, 81–82 [2012], citing Monnot, 207 N.Y. at 244 ; Levy v. Kurpil, 168 A.D.2d 881, 883 [1990] ). It has been held that hostility would be presumed where plaintiff had driven over defendant's property, since such action was adverse to defendant's ownership interest in the disputed parcel, even if plaintiffs' actions only affected a small portion of defendant's property (Goss v. Trombly, 39 AD3d 1128, 1129–1130 [2007] ).
It must also be recognized, however, that:
" ‘[H]ostility is negated by ‘[s]eeking permission for use from the record owner’ (City of Tonawanda v. Ellicott Cr. Homeowners Assn., 86 A.D.2d 118, 124 [1982], appeal dismissed 58 N.Y.2d 824 [1983] ). Further, where there is a close and cooperative relationship between the record owner and the person claiming title through adverse possession, the presumption of hostility may not apply (see Hassinger v. Kline, 91 A.D.2d 988, 989 [1983] ["the neighborly relationship between plaintiffs, their predecessors in title and defendants' predecessors in title, created an implication that the use of the disputed roadway was permissive"] ). Thus, in order to establish the hostility element, the party asserting the adverse possession claim must ‘come forward with affirmative facts to establish that the use [of the property] was under a claim of right and adverse to the interests of [the true owners]’ (Albright v. Beesimer, 288 A.D.2d 577, 578 [2001] [internal quotation marks omitted] )." (Estate of Becker, 19 NY3d at 82 ).
Further, the adverse possessor's belief with regard to ownership of Contested Property is not relevant to a determination of the issue. "Under longstanding decisional law applying these traditional common-law elements, a party seeking adverse possession could assert that he or she was acting under a ‘claim of right’ regardless of whether he had actual knowledge of the true owner at the time of possession" (Hogan, 86 AD3d at 591–592, citing Walling, 7 NY3d at 232–233 ; Asher v. Borenstein, 76 AD3d 984, 986 [2010] ; Merget v. Westbury Props., LLC, 65 AD3d 1102, 1105 [2009] ; accord Walling, 7 NY3d at 232–233 [2006] [adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed] ). Accordingly, 2610 Cropsey's contention that plaintiff could not acquire title to the Contested Property because it knew that its predecessor in interest did not acquire such title is without merit.
The Court notes that this is no longer the case after the amendment of the RPAPL in 2008:
"However, in 2008 the Legislature enacted changes to the adverse possession statutes contained in RPAPL article 5 (see L 2008, ch 269). These changes included rewriting RPAPL 501 to include, for the first time, a statutory definition of the ‘claim of right’ element necessary to acquire title by adverse possession. Pursuant to RPAPL 501(3), ‘[a] claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be.’
(Hogan, 86 AD3d at 590 ).
The Court finds that plaintiff's witnesses, three of whom were former presidents of the Board of plaintiff's cooperative, collectively established that for almost four decades' plaintiff has been openly, notoriously, and continuously utilizing the Small Parking Lot. Such usage of the disputed portion of Centre Place is hostile to defendant's rights, since the evidence also establishes that plaintiff has never been granted the right to use this area from defendant or its predecessors in interest. In this regard, defendant's claim that the use was permissive is not supported by the record (see Marone v. Kally, 109 AD3d 880, 882 [2013] ). Further support for the Court's finding is found in the Norge Stone easement whereby Contello Towers, plaintiff's predecessor in interest agreed to allow Norge Stone to use the western portion of Centre Place, based on its use of the Contested Property.
Actual
"Under RPAPL 522, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was either ‘usually cultivated or improved’ (RPAPL 522[1] ) or ‘protected by a substantial enclosure’ (RPAPL 522[2] )." East Hampton Livestock, 53 AD3d at 64; see e.g. Skyview Motel, LLC v. Wald, 82 AD3d 1081, 1082 [2011] [emphasis added], citing RPAPL former 522; BTJ Realty v. Caradonna, 65 AD3d 657 [2009] ; Goldschmidt v. Ford St., LLC, 58 AD3d 803, 805 [2009] ). "The type of acts necessary to constitute the required usual cultivation or improvement ‘will vary with "the nature and situation of the property and the uses to which it can be applied" and must "consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners" (Goss, 39 AD3d at 1130, quoting Ray, 88 N.Y.2d at 160 ; quoting Ramapo Mfg. Co. v. Mapes, 216 N.Y. 362, 373 [1915] ).
Accordingly, it has been held that an adverse possessor's conduct in regularly plowing the driveway and scraping ice from it in winter, mowing grass alongside it, trimming overhanging trees and having truckloads of gravel hauled to fill in ruts are maintenance activities similar to those conducted by most owners of driveways and is consistent with the nature of the use of property as a driveway (Goss, 39 AD3d at 1129–1130 ). Similarly, it has been held that the conduct of the adverse possessor in landscaping, maintaining and furnishing the disputed property year round and using it as a place to park their cars is similar to those ordinarily employed by owners of such property and is consistent with the nature of the disputed property so as to indicate exclusive ownership, provide notice to defendants of their adverse claim throughout the pertinent time period and to establish the requisite cultivation or improvement (Bergmann v. Spallane, 129 AD3d 1193, 1195–1196 [2015] ).
Here, the credible evidence establishes that Centre Place had been unpaved and unimproved through 1978, when it was paved. Thereafter, the plaintiff regularly maintained the Small Parking Lot by removing garbage, conducting snow removal, and re-painting the lines marked for parking spaces. Contrary to the opinion expressed by defendant's expert, the Court finds this evidence sufficient to establish that plaintiff usually cultivated or improved the Contested Property.
Open and Notorious
"The element of ‘open and notorious' requires that the possession be sufficiently visible such that a casual inspection by the owner of the property would reveal the adverse possessor's occupation and use thereof" (Weinstein Enters. v. Pesso, 231 A.D.2d 516, 517 [1996], citing West v. Tilley, 33 A.D.2d 228, 230 [1970], lv denied 27 N.Y.2d 481 [1970] ; Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich, 132 App.Div. 118 [1909], affd 200 N.Y. 533[1910] ).
Here, while defendant contends that plaintiff had no signage or fencing which identified the Contested Property as a parking lot, the evidence adduced at trial, which includes photographs, establishes that anyone observing the paved area would see cars parked in the marked spaces and be aware that the property was being used as a parking lot.
Exclusive
In discussing the requirement of exclusivity, it has been held that:
"To establish the ‘exclusivity’ element, the adverse possessor must alone care for or improve the disputed property as if it were his/her own (see Beddoe v. Avery, 145 A.D.2d 818, 819 [1988] ). The focus is on whether the party claiming title by adverse possession exercised exclusive possession and control of the property. Thus, allowing others to use the property does not necessarily negate ‘exclusivity.’ When the party claiming adverse possession permits others to use the property, exclusivity exists where the claimant's use of the property is ‘separate and exclusive from the general use’ (Pirman v. Confer, 273 N.Y. 357, 363 [1937] ; see Pro–Fac Coop. v. Baltimore & Ohio R.R. Co., 36 A.D.2d 441, 444 [1971] ; see also Levy, 168 A.D.2d at 883 [claimant's use is exclusive to the extent that although others use disputed property, claimant's use is not dependent on the right of others to do so] )." (Estate of Becker v, 19 NY3d at 83 ).
Here, Bernstein and Rose testified that based on their personal knowledge as members and former presidents of the Board, tenant shareholders have been renting parking spaces in the Small Parking Lot since at least the 1980's. They also testified that the public was not allowed to park in the Small Parking Lot. This conclusion is not altered by Giammona's testimony that he parked in the lot from time to time without consequence.
Continuous for a Period of Ten Years
Here, the testimony of Markman, the Board's first president, established that the Contested Property was paved in 1978 with the intent to be used as a parking lot. Consistent with Markman, Rose testified that he personally observed the paving of the Contested Property in 1978. Rose further testified that plaintiff's predecessor in interest used the Small Parking Lot. The testimony of Bernstein established that the Contested Property continued to be used as a parking lot from 1978 through 1989. The testimony of Ravin further established the continued use of the Contested Property as plaintiff's Small Parking Lot through 2000. Thus, the evidence clearly establishes that the Contested Property was used by plaintiff and/or its predecessor in interest for more than ten years and that its use was "open and notorious, exclusive, and inimical to the rights of" defendant and its predecessor (see generally Marone, 109 AD3d at 882, citing Estate of Becker, 19 NY3d at 81–83 ; Walling, 7 NY3d at 232 ; Kelly v. Bastianic, 93 AD3d 691, 693–694 [2012] ; Zeltser v. Sacerdote, 52 AD3d 824 [2008] ; Gaglioti v. Schneider, 272 A.D.2d 436, 436–437 [2000] ). In so holding, the Court finds defendant's contention that the statutory period did not begin to run until it demanded that plaintiff remove the obstruction of the easement on March 15, 2006 is without merit. In fact, the case relied upon by defendant, Berry v. Southard (15 AD3d 516 [2005] ), supports a finding the statutory period began to run when the Small Parking Lot was paved in 1978:
"[S]o-called ‘paper’ easements may not be extinguished by adverse possession absent a demand by the owner that the easement be opened and a refusal by the party in alleged adverse possession (see Spiegel v. Ferraro, 73 N.Y.2d 622, 626 [1989] ). The theory underlying the exception is that ‘paper’ easements, not definitively located and developed through use, ‘are not yet in functional existence and therefore the owner of the easement could not be expected to have notice of the adverse claim until either the easement is opened or the owner demands that it be opened. It is only at such point, therefore, that the use of the easement by another is deemed to be adverse to the owner and the prescriptive period begins to run’ (id. )." (Berry, 15 AD3d at 516 ).
Herein, the testimony adduced at the trial indicates that the Contested Property has been used by plaintiff and/or its predecessor in interest as the Small Parking Lot since at least the 1980s. Thus, the easement was opened since at least the time that it was paved; since the easement was definitively opened since that time, the rule in Berry does not apply.
Based on the foregoing, the Court finds that plaintiff has established the elements of adverse possession by clear and convincing evidence. The Court further finds that plaintiff's claim of adverse possession of the Contested Property is not precluded by the paper street rule. Most significant in this regard is that Centre Place is not a paper street or paper easement, since it has been opened and in use since 1880, as was discussed in detail above.
Even if Centre Place was found to be a paper street or paper easement, plaintiff can nonetheless establish a right to title by adverse possession. The paper street rule provides that where the legal right at issue is that of a lot owner to use a filed map street, non-use alone cannot extinguish the easement; the possession can only become adverse when the occupier proves that his affirmative acts of possessory ownership were known to all of the lot owners at times when each had occasion to assert a right to the use of the servient tenement (O'Hara v. Wallace, 83 Misc.2d 383, 387 [1975] ; see also Guardino v. Colangelo, 262 A.D.2d 777, 779 [1999] ; Lodol v. Arbus, 46 AD3d 765, 766, [2007] ). In this case, plaintiff has sustained this burden as well.
THE PRACTICAL LOCATION DOCTRINE
It is well settled that:
"A practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary ... although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners' " (Hazen v. Hazen, 26 AD3d 696, 697–698 [2006], quoting Fisher v. MacVean, 25 A.D.2d 575, 575 [1966] ). For the doctrine to apply, there must be a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is ‘definitely and equally known, understood and settled.’ " (McMahon v. Thornton, 69 AD3d 1157, 1160 [2010] ).
Based on the evidence adduced at trial, including testimony, the Court's review of the photographs in evidence, and the Court's personal observation of the Contested Property on its December 2014 sight visit, the property owners of the lots abutting Centre Place have recognized the centerline of Centre Place as their boundary line. This conclusion is further supported by the Norge Stone easement , since that easement was placed with six feet on each side of the center line of Centre Place, thereby indicating that the parties to the Agreement believed that the boundary line for the property that each held was the center line of the street.
The owners of Lots 40, 41, and 46, named non-appearing defendants in the within action, obtained a release for the half of Centre Place abutting their property in 1977 pursuant to the Norge Stone easement.
In so holding, the Court finds defendant's contention that the recognized boundary line as between the owners of the property on Block 6933 was the fence between the Large Parking Lot and the Small Parking Lot is not credible. In this regard, plaintiff has used the area to the east of the fence for parking since the Small Parking Lot was paved, so that it was clear to all parties that plaintiff believed that the boundary line of its property was the center line of Centre Place, where the pavement ended. Defendant's claim that the fence should have been placed in the center of Centre Place if plaintiff did, in fact, believe that that was the boundary of its property is disingenuous. The photographs introduced into evidence make it clear that since the cars in both the Small Parking Lot and the large parking lot parked adjacent to the fence, if another fence was constructed down the center of Centre Place, there would be no access to the parking spaces in the Small Parking Lot. In addition, Bernstein testified that he believed that the boundary line was the place where the paved Small Parking Lot meets with the grassy area.
Accordingly, the Court finds that plaintiff has also acquired titled to the Contested Property pursuant to the practical location doctrine.
REMAINING DEMANDS FOR RELIEF
Firstly, the Court finds that Centre Place, as it now exists, is fifty (50) feet wide by approximately one hundred eighty-one (181) feet. It begins at a curb cut on 26th Avenue, between Cropsey Avenue and Shore Parkway, and then runs southeasterly for approximately one hundred eighty-one (181) feet, until it comes to a dead end at a fence. Having held that plaintiff is entitled to ownership of the Small Parking Lot, on the southwesterly portion of Centre Place pursuant the doctrines of adverse possession and practical location, it follows that defendant does not hold any ownership or easement interest in this land, and defendant's rights to Centre Place is derived from its original deed dated April 27, 2005 which grants it rights to abutting streets to the center line thereof, but did not grant such rights to Lot 51.
Accordingly, plaintiff's remaining demands for relief must also be granted to the extent, i.e., the Register of the City of New York, Kings County is directed to expunge the record of various alleged correction deeds filed by defendant to include ownership of Centre Place. In addition, defendant is ordered to remove the fence it erected and to restore the sidewalk to its previous condition within 30 days or, in the alternative, to allow plaintiff to do so, with the cost of said work to be reimbursed by defendant (see O'Hara v. Wallace, 52 A.D.2d 622 [1976] ).
The Court finds that defendant holds no ownership interest or easement rights of any kind in Stillwell Street. In this regard, the historical origin of Stillwell Street can also be traced back to the Tunis Stryker Map. On the Tunis Stryker Map, Stillwell Street is shown as a mapped street which is the southern boundary of the lots depicted thereon and running from the Gowanus Bay on the west, through Centre Place, to Mill Road on the east. However, the 1880 Robinson Atlas Map depict Stillwell Street as Bay 43rd Street. The documentary evidence shows that Meyer Glick (‘Glick"), a real estate developer in New York City, sought to develop the parcels of land depicted as Blocks 6933 and 6934, which included Centre Place and Bay 43rd Street. In furtherance of his development plan, Glick, in 1958, entered into a Land Disposition Agreement with Contello Towers, and Blocks 6933 and 6934 were consolidated into Block 6933 and Bay 43rd Street was closed as part of proceedings before the Board of Estimate which resulted in the City deeding the Street to Meyer Glick, who in turn conveyed the properties to Contello Towers by deed dated April 6, 1969.
By 1959, Glick acquired Lots 36, 37, 38, 39, 40, 55, 57, 60, 63, and 75 on Blocks 6933 and 6934.
Based on the historical development of Block 6933, including the property acquisition by Glick, the development of moderate income housing by Contello Towers, the lack of objection by defendant's predecessor in interest, W & H Burt, Inc. as to said development, the Court finds that Stillwell Street and Bay 43rd Street are one and the same street. From this it follows that when the City closed Bay 43rd Street in 1959 and the construction of Contello Towers was completed thereafter, all rights to the roadbed that had been held by owners of the abutting lots, including all rights held by defendant's predecessors in interest to Stillwell Street, were extinguished. Based on the Court's findings regarding Bay 43rd Street, there is no legal or factual basis for defendant's claim that its chain of title for Lot 51 vests it with ownership or easement rights to Stillwell Street.
Further, having held above that defendant holds no ownership or easement interest in the property that was formerly known as Stillwell Street on historic maps, or any rights to that portion of Centre Place that is south of Stillwell Street, defendant's demand for damages for plaintiff's use of property south of Stillwell Street must be denied.
Plaintiff's request for a hearing on sanctions is also denied. "In its discretion, a court may award costs and financial sanctions against an attorney or party resulting from frivolous conduct" (Flaherty v. Stavropoulos, 199 A.D.2d 301, 302 [1993], citing 22 NYCRR 130–1.1 [a] ). Rule 130–1.1(c)(1) provides that conduct is frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law" or if it "is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another" (see generally Kornblum v. Kornblum, 34 AD3d 749, 751 [2006], citing Kucker v. Kaminsky & Rich, 7 AD3d 491, 492 [2004], lv denied 3 NY3d 607 [2004] ). The record demonstrates that Giammona is an experienced real estate developer, who prior to acquiring Lots 48 and 51, made approximately twevel (12) site visits. It appears that Giammona contemplated the development possibilities for his properties after acquisition. While the record shows that Giammona was at least partially responsible for asserting the claims herein, it appears that he has been ill advised by prior counsel and other professionals who assisted him in achieving his land use objective. Additionally, although the Court finds that the defendant's remaining contentions are baseless, the defendant, in fact, withdrew several counterclaims that had no legal foundation. Accordingly, considering all of these factors, on balance, the Court declines to impose sanctions.
Based on the foregoing, it is hereby
ORDERED, that plaintiff holds title to the southwesterly portion of Centre Place on which the Small Parking Lot is located; and it is further
ORDERED, that Register of the City of New York, Kings County is directed to expunge of record the deeds dated May 14, 2007, April 30, 2008, pursuant to which defendant, 2610 Cropsey conveyed portions of Centre Place to itself; and it is further
ORDERED, that defendant is ordered to remove the fence it erected and to restore the sidewalk to its previous condition within 30 days or, in the alternative, to allow plaintiff to do so, with the cost of said work to be reimbursed by defendant; and it is further
ORDERED, that defendant's counterclaims for declaratory judgment are granted to the extent that defendant is granted an implied easement over Centre Place to the center line thereof, as it now exists, from the northern boundary of Lot 51 to 26th Avenue, as is now is use, for access to its property. All other relief requested is denied.
The foregoing constitutes the Order, Decision and Judgment of this Court.