County of Suffolk Div. of Real Prop. Acquisition & Mgt. v Kandler

[*1] County of Suffolk Div. of Real Prop. Acquisition & Mgt. v Kandler 2008 NY Slip Op 51525(U) [20 Misc 3d 136(A)] Decided on July 10, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2007-103 S C.

County of Suffolk Division of Real Property Acquisition and Management, Respondent,

against

Frank Kandler and DEBORAH KANDLER, Appellants, -and- MICHAEL MARIGLIANO, JOHN DOE and/or JANE DOE, Respondents.

Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J., at trial; James P. Flanagan, J., at judgment), entered November 21, 2006. The final judgment, after a nonjury trial, awarded possession to petitioner in a summary proceeding brought pursuant to RPAPL 713 (4).

Final judgment affirmed without costs.

Following a tax sale, the subject premises, which was formerly owned by occupants-appellants Frank Kandler and Deborah Kandler, was conveyed to Suffolk County by deed dated April 4, 1995. The principal defense in this proceeding by the County to remove appellants is that the proceeding is untimely under the 10-year statute of limitations governing the recovery of real property (CPLR 212 [a]) because it was not commenced until 2006. Ruling that the controlling statute was not CPLR 212 (a) but rather CPLR 211 (c), which provides a 20-year limitation period for actions by the State to recover real property, the District Court found that [*2]the proceeding was timely commenced and awarded possession to petitioner.

While there is authority which supports appellants' contention that the applicable statute is CPLR 212 (a), not CPLR 211 (c) (see Ammirati v Van Wicklen, 16 Misc 3d 952, 957 [2007], and cases cited therein), we need not ultimately determine this issue here because, even assuming that CPLR 212 (a) is the applicable statute, appellants' adverse possession defense is unavailing.

CPLR 212 (a) states:
"Possession necessary to recover real property. An action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action."
CPLR 212 (a) must be read together with RPAPL 311, which creates a presumption that the person who establishes legal title was possessed of the premises within the required period, which presumption may be overcome only by proof of possession adverse to the legal title (see Weinstein-Korn-Miller, NY Civ Prac ¶ 212.01). RPAPL 311 states:
"In an action to recover real property or the possession thereof, the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action."

In the instant matter, the County, which established legal title by virtue of the April 4, 1995 deed, is presumed to have been possessed of the property within the time required by law, and appellants are presumed to possess in subordination to the County's legal title, unless they possessed adversely to that title for 10 years. While appellants claim that they adversely possessed the property for 10 years, their claim is defeated by the proof showing that, in 1998, within the 10-year period, appellants offered to purchase the property back from the County, and that, in 1999, they commenced a Supreme Court action seeking to compel the County to sell the property to them. These actions by appellants constitute an acknowledgment of the County's title and thus prevent adverse possession from accruing (see Sugarman v Malone, 48
AD3d 281 [2008]; Manhattan School of Music v Solow, 175 AD2d 106 [1991]; see also Van Gorder v Masterplanned, Inc., 78 NY2d 1106 [1991]).

Appellants' remaining contention similarly lacks merit.

Accordingly, the final judgment is affirmed.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: July 10, 2008