McNeil v Konefsky
Annotate this CaseDecided on July 18, 2005
Supreme Court, Kings County
Elery McNeil, Plaintiff,
against
Albert Konefsky, as Executor of the Estate of EVELYN SMITH, sole heir at law of, FLORENCE BALLARD, Deceased, Defendant
9033/01
Francois A. Rivera, J.
By notice of cross-motion defendant moves pursuant to CPLR §3212 and RPAPL §531 for an order dismissing plaintiff's complaint, discharging a notice of pendency, and other ancillary relief. Plaintiff opposes the motion.
On March 21, 2001, plaintiff commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. The verified complaint contains ten allegations of fact in support of plaintiff's request for an order declaring plaintiff's rights to certain real property through adverse possession, and other ancillary relief. Defendant's verified answer asserts sixteen affirmative defenses and seven counterclaims.
By order dated March 4, 2005, this court dismissed defendant's second counterclaim for back rent and/or use and occupancy and denied defendant's request for sanctions against plaintiff for engaging in frivolous conduct. By order dated April 8, 2005, this court gave defendant leave to amend the answer and counterclaim to add as a co-defendant Albert Konefsky, the temporary administrator of Florence Ballard's estate. By a stipulated order, dated April 8, 2005, plaintiff is to be provided access to the premises in question to remove her personal belongings.
The issues remaining to be resolved are defendant's request for an order granting summary judgment dismissing plaintiff's complaint and ejecting plaintiff from the premise; discharging a notice of pendency, and severing certain counterclaims.
On February 6, 2004, plaintiff provided defendant with verified answers to the defendant's interrogatories. On April 8, 2004, plaintiff was deposed. The following facts are derived from plaintiff's sworn statements. Effective August 1, 1978, plaintiff and her husband leased the top floor of 147 Patchen Avenue, Brooklyn, New York, from Florence and Thomas [*2]Ballard for $175.00 a month. Plaintiff continued to pay rent until at least 1986. This house is the subject of the litigation. In 1980, Florence Ballard broke her hip. From that point until her death on October 22, 1988, plaintiff and her husband took care of Florence Ballard without compensation. They would regularly transport her to the pharmacy, hospital and her bank. They also cooked for her, purchased her clothing, changed her bed sheets, and helped her groom and bathe. Plaintiff had access to Florence Ballard's apartment during this period. After Florence Ballard's death, plaintiff and her daughter paid the property taxes, insurance and sundry bills of the house. On December 9, 1992, plaintiff's husband passed away. On December 2, 2002, upon reaching the age of seventy-five, plaintiff left the residence and moved into a senior citizen apartment where she presently resides.
Defendant contends that as a matter of law, plaintiff has no valid claim to the premises by virtue of RPAPL § 531. Plaintiff contends that her possession and exercise of dominion and control of the premises has ripened to ownership through adverse possession.
RPAPL § 531 concerns the affect of the landlord and tenant relationship to adverse possession and provides as follows:Where the relation of landlord and tenant has existed between any persons the possession of the tenant is deemed the possession of the landlord until the expiration of ten years after the termination of the tenancy; or, where there has been no written lease, until the expiration of ten years after the last payment of rent; notwithstanding that the tenant has acquired another title or has claimed to hold adversely to his landlord. But this presumption shall cease after the periods prescribed in this section and such tenant may then commence to hold adversely to his landlord.
To acquire title to real property by adverse possession, common law requires the possessor to establish that the character of the possession is hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period (Berry v. Southard, 15 AD3d 516 [2nd Dept. 2005]). Since the acquisition of title to land by adverse possession is not favored under the law (Gallea v. Hess Realty Corp., 128 AD2d 274-275 [4th Dept. 1997]), these elements must be proven by clear and convincing evidence (Gore v. Cambareri, 303 AD2d 551-552 [2nd dept. 2003]. 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]).
RPAPL § 501 provides as follows:
An entry upon property is not sufficient or valid as a claim unless an action is commenced thereupon within one year after the making thereof and within ten years after the time when the right to make it descended or accrued.RPAPL § 521 concerns adverse possession under claim of title not written and provides
as follows:
[*3]
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.
Plaintiff's sworn statements establish that she was the Ballards' tenant and regularly paid them rent through 1986. In accordance with RPAPL § 531, this fact would render the possession of the premises to be held by the Ballards until ten years after plaintiff's last payment of rent. The statute creates a conclusive presumption of nonadversity for the prescribed 10-year period when the possession arises out of a landlord-tenant relationship. This presumption provides added protection to landlords by distinguishing claims by tenants whose possession initially is authorized and permissive from claims by strangers, whose claims are adverse from their inception. By the same token, it limits the period of presumed permission to 10 years after termination (Gallea v. Hess Realty Corp., 128 AD2d 274-277 [4th Dept. 1997]). It is only after this period that plaintiff may commence to hold adversely to the Ballards. Thus, under RPAPL §531, a minimum period of twenty years must elapse from the last payment of rent or from the expiration of the lease before occupancy of a tenant may ripen into title by adverse possession. This twenty years must include ten years during which the tenant's occupancy is deemed that of the landlord and therefore not adverse (Gallea v. Hess Realty Corp., 128 AD2d 274-277 [4th Dept. 1997]).
Giving the plaintiff the benefit of the earliest date possible, the court assumes for purposes of this motion that plaintiff's last payment of rent was on January 1, 1986. Plaintiff could not commence to hold adverse possession of the Ballard's home until January 1, 1996.
Therefore, plaintiff's claim against the Ballard's home can not ripen to title by adverse possession until at least January 1, 2006. Since the instant action was commenced in 2001, defendant's application to dismiss plaintiff's complaint and to discharge the notice of pendency on the property located at 147 Patchen Avenue, Brooklyn, New York is granted. Defendant's application to sever certain counterclaims is denied as moot.
.
The foregoing constitutes the decision and order of this court.
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J.S.C.
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