Samuel Young Post 620 Am. Legion, Inc. v Iannuzzi

Samuel Young Post 620 Am. Legion, Inc. v Iannuzzi 2007 NY Slip Op 03776 [40 AD3d 233] May 1, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Samuel Young Post 620 American Legion, Inc., Respondent,
v
Rosemary Iannuzzi, Appellant.

—[*1] Jonathan B. Altschuler, New York, for appellant.

Edward L. Koester, Bronx, for respondent.

Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 24, 2006, after a nonjury trial, in plaintiff's favor on a question of adverse possession, unanimously affirmed, without costs.

The credited and uncontradicted trial testimony of plaintiff's witnesses, which was substantiated by documentary and photographic evidence, established that plaintiff openly, notoriously, continuously and under a claim of right occupied, regularly utilized, cultivated and enclosed the disputed section of Block 5381 on the Bronx County Tax Map for a period in excess of 21 years (RPAPL 522; see Walling v Przybylo, 7 NY3d 228 [2006]). The appellate argument of defendant record titleholder that the evidence at trial to support such findings was not clear and convincing is belied by the record. There was no evidence to support her contention that plaintiff occupied the disputed Lot 75 as a "squatter" only. In fact, the evidence in the record refutes this contention, including proof that the City of New York, as a prior owner of Lot 75, had erected an eight-foot fence effectively isolating the disputed portion of Lot 75. Plaintiff's hostile use of the disputed portion of property was uninterrupted for at least 21 years by the time defendant purchased the entire lot in 1999 and challenged plaintiff's claim of right. Defendant's assertion that she had no notice of plaintiff's adverse claim to the disputed portion of Lot 75 prior [*2]to her purchase does not, under these circumstances, defeat plaintiff's claim of right (see e.g. Connell v Ellison, 58 NY2d 869 [1983], affg 86 AD2d 943 [1982]). Concur—Marlow, J.P., Nardelli, Gonzalez, Sweeny and Malone, JJ.