DuMaurier v Lindsay-Bushwick Assoc., L.P.

[*1] DuMaurier v Lindsay-Bushwick Assoc., L.P. 2005 NY Slip Op 51367(U) [9 Misc 3d 1101(A)] Decided on August 29, 2005 Supreme Court, Kings County Lewis, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2005
Supreme Court, Kings County

Noel DuMaurier, Plaintiff,

against

Lindsay-Bushwick Associates, L.P., PRUDENTIAL HUNTOON PAIGE ASSOCIATES, LTD., Defendants.



19353/04

Yvonne Lewis, J.

The defendant, Lindsay-Bushwick Associates, L.P. (LBA), has moved this court for summary judgment to dismiss the plaintiff's amended complaint which seeks "ownership by adverse possession to a parcel of property [located at 170 Johnson Avenue, Block 3071, Lot 10] which adjoins his property to the east and to which LBA has held record title since 1980." LBA asserts that there are no issues of fact in this action as the plaintiff "has never had record title to the parcel, nor has he cultivated it or enclosed it for ten years." LBA has utilized the subject parcel, part of a larger one on which LBA constructed a subsidized housing development [Caribe Gardens], for underground plumbing lines for storm drainage and as a key-gated, fence-enclosed garden for the tenants by which it exercised dominion and control over the parcel for over twenty years. LBA has continuously paid real estate taxes and insurance premiums for this parcel since its purchase, and attributes vandalism as the reason for declined use of the garden by the tenants.

The plaintiff acquired the easterly adjoining parcel, 168 Johnson Avenue, Block 3071, Lot 9, on or about February 19, 2002 from his brother, Bienvenido Gonzalez, who had acquired the

same on November 3, 1978. In approximately the summer of 2002, the plaintiff tore down a portion of LBA's fence in order to erect a roll-down gate parallel to the northern side of the parcel through which he placed two cars and various other objects on the subject parcel. By letter, dated October 2, 2003, the plaintiff was requested to remove his roll-down gate. On or about April 2004, LBA employees were directed to remove the fence on the eastern portion of the parcel and to remove debris therefrom and re-landscape the property, as well as to erect a fence on the inside of the roll-down gate. Finally on April 15, 2004, the plaintiff removed his selected items from the parcel and turned over the key to the roll-down gate to LBA so as to permit LBA to remove whatever debris remained, including the plaintiff's gate and the LBA fence, save for the portion priorly removed by the plaintiff.

In light of the foregoing, LBA asserts that the plaintiff has not demonstrated by clear and convincing evidence, that its possession is actual, under a claim of right, open, notorious, exclusive and continuous for ten years as required for a claim of adverse possession (Dickerson Pond Sewage Works Corp. v. Valeria Assocs., 231 AD2d 488 [2d Dept. 1966]; Seisser v. Eglin, [*2]7 AD3d 505 [2d Dept. 2004]). In addition, a party having record title to premises is presumed to have possession of the same (NY JUR. 2D, Adverse Possession §8 [1998]), and an adverse possessor must produce evidence that the subject property was either "usually cultivated or improved" or "protected by a substantial inclosure." (NY RPAPL §522 [1]). In Van Valkenburgh v. Lutz, 304 NY95 [1952], the Court of Appeals made clear that placing items ". . .described as 'personal belongings,' 'junk,' 'rubbish,' and 'debris' were acts which under no stretch of the imagination could be deemed an occupation by improvement. . .and which, of course, are of no

avail in establishing adverse possession." Furthermore, the attempt to tack on prior ownership in this instance by the plaintiff's brother can be actualized if there is unbroken chain of privity between the parties. The plaintiff must establish that "the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed (Colnes v. Colligan, 183 AD2d 693 [2d Dept. 1992]; and Rogoff v. Neal Vanderbilt Brand v. Prince, 35 NY2d 634 [1974]). Accordingly, LBA argues that the plaintiff's first, fourth, and fifth causes of action should be dismissed inasmuch as plaintiff, contrary to his claims, has not respectively established a legitimate entitlement by adverse possession and LBA does have right, title and interest to the parcel. It also follows that without a claim of ownership, plaintiff's second and third causes of action alleging trespass and conversion (Batsidis v. Batsidis, 9 AD3d 342, [2d Dept. 2004], and Ton-Da-Lay, Ltd. v. Friedman, 75 AD2d 976 [3d Dept. 1980]) and his sixth cause of action for a declaratory judgment in its favor are without legal merit.

When declaratory judgment is sought on a motion seeking dismissal of the action, ". . .the court should determine the rights of the parties involved rather than dismiss the action. . ." (Flikshtein v. City of New York, 273 AD2d 439 [2d Dept. 2000]). Accordingly, LBA should be declared the fee simple owner of the subject lot.

The plaintiff, in opposition, asserts that his family exclusively occupied the subject parcel since 1978 as a [fifty feet by forty feet] side yard. That in or about 1983, after being repeatedly advised by LBA employees that LBA did not own the parcel and that it was his problem, the "plaintiff" erected a fence to enclose said parcel, cleaned, and maintained the same until LBA forcibly removed him therefrom on April 15, 2004. Since 1990, the plaintiff's sister was even

allowed to store merchandise on the subject parcel for her second-hand store which she maintained on the ground floor of plaintiff's building. The plaintiff also maintains that the only fence ever erected by LBA was on the easterly side of the parcel which separated it from the housing development that it had built. In addition, contrary to the survey and 1980 plan referenced by LBA, at no time was a garden ever actually put into place. The westerly side of the parcel was fronted by and directly accessible through a door of the plaintiff's building. The southerly side was bounded by a building owned by another party. However, since there was no fence along the northerly side before he installed one, the neighborhood had utilized it as a trash dump, which had resulted in "[r]ats being attracted to the garbage and children would hang around playing amidst the rubbish (to say nothing of urinating and simply loitering)." The plaintiff further advises that he only furnished a key to LBA's staffer under the threat that his roll-down gate and fence would be torn down if he didn't, which the staffer did anyway some two [*3]months later while he was out of the country. Finally, the plaintiff argues that the foregoing gives rise to the existence of genuine issues of fact that preclude the granting of summary judgment (Sillman v. Twentieth Century-Fox film corp., 3 NY2d 395, 165 NYS2d 498[1987]; Capelin Assoc. v. Blobe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478 [1978]).

Those issues involve a determination as to 1. when for the first time the parcel was enclosed, 2. who was responsible for that enclosure, 3. was the property cultivated and, if so, by whom, 4. was the gate supposedly erected by LBA capable of permitting access by its tenants; 5. did LBA have a building door that allowed entry onto the parcel; 6. was there ever a garden on the subject lot; 7. who in fact constructed an enclosure on the northern facade of the property; 8. did plaintiff indeed give LBA consent to remove his property from the parcel; and, 9. who actually maintained the lot. The plaintiff asserts that to answer these questions he will need to review LBA's construction plans, refinance documents, title reports, surveys, and mortgage documents, as well as depose individuals with personal knowledge of the pertinent facts since the affidavits submitted by LBA are from persons who did not have actual knowledge of what transpired during the period of adverse possession. The plaintiff also points out that "summary judgment should be denied where a party has not had an opportunity to ascertain pertinent facts on relevant issues in the case." (Government Employees Insurance Company v. Desiderio, 104 AD2d 791, 480 NYS2d 132 [2d Dept. 1984]). The plaintiff concludes by asserting that his enclosure of the property with a fence, ". . .clearing and maintaining the property, his construction of drainage pipe on the south side of the property to prevent water build up on the property, his removal of brush, and the storing of merchandise from his sister's store on the property, all for more than 10 years, is sufficient to establish that [he] cultivated the property for the statutory period necessary for adverse possession." (Golden Hammer Auto Body Corp. v. Consolidated Rail Corporation, 151 AD2d 545, 542 NYS2d 320 [2d Dept.]). With regards to the period of adverse possession, the plaintiff avers that it should extend back to the time of his brother's acquisition of the property since when he acquired the same it was his brother's intent, as evidenced by his attached affidavit, to also convey the side yard.

In reply, LBA repeats its earlier assertions, and essentially argues that the plaintiff's storage of objects and/or merchandise does not constitute business use, cultivation, and/or improvement of the subject parcel. In addition, LBA maintains that there can be no privity of interest in this instance as the plaintiff's brother never believed that the parcel ". . .was his or that

he acquired title to it, he merely treated it as his own although title to it was vested in another party."

Prudential Huntoon Paige Associates, Ltd., LBA's mortgagee, counterclaims herein for dismissal of the plaintiff's amended complaint and for summary judgment in its favor, pursuant to CPLR 3212, to quiet title to 170 Johnson Avenue, inclusive of the subject parcel. Prudential asserts that LBA is the undisputed title holder of the property, and "[s]ince the City of New York is the prior owner of the premises pursuant to the urban renewal and condemnation plans, it must be concluded that the City of New York owned the Premises in its sovereign capacity (Warren's Weed, NY Real Property, 4th Edition, Adverse Possession section 9.03; City of Tonawanda v. Ellicott Creek Homeowner's Association, 86 AD2d 118, 449 NYS2d 116 (4th Dept., 1982); Romart Properties, Inc. v. City of New Rochelle, 67 Misc 2d 162, 324 NYS2d 277). . . .as such, [*4][plaintiff's brother] Bienvenido Gonzalez was unable as a matter of law to assert adverse possession against the premises during the City's ownership." Prudential also argues that there is simply no basis for the assertion of a claim of adverse possession herein since the plaintiff's brother's title report and survey supplied him with clear knowledge and notice that his prior ownership of the subject parcel was not under a claim of right or title, the acquisition from his brother was in 2002; hence, under ten years, and the plaintiff has not established usual cultivation and improvement, or protection by substantial enclosure

The plaintiff and his brother submitted affidavits in opposition to Prudential's cross motion which reiterated their arguments earlier set forth. In response to the absence of a claim of right, it is the plaintiff's position that in order to establish such a claim ". . .all that is necessary is

a showing that the possession constitutes an actual invasion of or infringement upon the owner's rights. Consequently, hostility or a claim of right may be found even though the possession occurred inadvertently or by mistake." (Katona v. Low, 226 AD2d 433, 641 NYS2d 62 [2d Dept. 1996]; Greenberg v. Sutter, 257 AD2d 646, 684 NYS2d 571 [2d Dept. 1999]; Gore v. Cambereri, 303 AD2d 551, 755 NYS2d 728 [2d Dept. 2003]).

Prudential's reply to the foregoing also provided no novel arguments, and merely stressed the fact that the City's prior condemnation of the property constituted ownership which precluded the occurrence of any adverse possession.

This issue of city ownership herein is of no moment. The Appellate Division, Second Department, made it abundantly clear, in the matter of Monthie v. Boylke Road Associates, LLC., 281 AD2d 15, 724 NYS2d 178, that ". . .it is well settled that a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute (citing, City of New York v. Wilson & Co., 278 NY 86, 15 NE2d 408; Casini v. Sea Gate Assn., 262 AD2d 593, 692 NYS2d 676; Matter of City of New York [Mileau Corp], 72 AD2d 745, 421 NYS2d 258). Conversely, when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession (citing, Starner Tree Serv. Co. v. City of New Rochelle, 271 AD2d 681, 707 NYS2d 867; Casini v. Sea Gate Assn., supra). The court also noted that the holding in Matter of City of New York [Mileau Corp], supra, provided ". . .support for the proposition that if a municipality decided to sell a portion of a parcel, the portion which is for sale is regarded as a proprietary holding. . . .It is the action of placing the parcel on the market, rather than the sale itself, that converts the use of the

land." It therefore follows in the matter sub judice that each individual lot once offered for sale (even had they not eventually been sold to the plaintiff's brother [1978] and LBA [1980]), became proprietary holdings subject to being adversely possessed.

It is clear from the parties' submissions that LBA is the record title holder to the subject parcel, and has continuously paid real estate taxes and insurance premiums for the same since its purchase in 1980.

The Appellate Division, Second Department, in Giannone v. Trotwood Corporation, 266 AD2d 430, 698 NYS2d 698, noted that RPAPL §522(1) and (2) requires that "a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must produce evidence that the subject premises were either 'usually cultivated or improved' or 'protected by a [*5]substantial inclosure.' That party must also establish, by clear and convincing evidence, the common law requirements of hostile possession, under a claim of right, which was actual, open and notorious, and exclusive, and continuous for the statutory period (see Brand v. Prince, 35 NY2d 634, 364 NYS2d 826; Manhattan School of Music v. Solow, 175 AD2d 106, 571 NYS2d 958)." The court went on to observe that "[a] party seeking summary judgment 'must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Grevasioi, 81 NY2d 1062, 601 NYS2d 463; Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923). A prima facie showing shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see Alvarez v. Prospect Hosp., supra). Finally, the court concluded that ". . .proof that the plaintiffs allowed their tenants to use

the disputed property, and that the plaintiffs cut grass and kept the disputed area manageable is insufficient to establish adverse possession by usual cultivation or improvement (citing Yamin v. Daly, 205 AD2d 870, 613 NYS2d 300; Manhattan School of Music v. Solow, supra). The plaintiffs' unsupported claim that the disputed area was fenced in some fashion is likewise insufficient to establish adverse possession by 'a substantial enclosure' [RPAPL 522[2]).

On the basis of the descriptions and pictures offered by LBA and the plaintiff, the parcel herein concerned is a fifty feet by forty feet lot bounded by the plaintiff on its western side, LBA on its eastern side, a disinterested, third-party entity on its southern side, and an open northern facade along Johnson Avenue. The pictures make it particularly clear that the plaintiff had erected a roll-down gate on the northern exposure by cutting off what the plaintiff asserts was a portion of LBA's fence. The plaintiff suggests that this gate was installed in 1983 whereas LBA asserts that it was in the year 2000. Curiously, however, LBA never indicated that it had constructed any fence besides the one along the eastern line of the subject property. Hence, although we don't know for certain who erected the fence along the northern side of the parcel, we know by the plaintiff's admission that neither he nor his brother did. It therefore follows that the plaintiff was not responsible for any substantial enclosure of the subject property. The various cases hereinabove cited leave debatable the issue of whether the plaintiff's assertions of clearing and maintaining the property, constructing a drainage pipe on the south side of the property to prevent water build up on the property, his removal of brush, and the storing of merchandise from his sister's store on the property, all for allegedly more than 10 years, actually constitute usual cultivation or improvement. In light of the fact that no overhead cover existed on the property,

one is hardpressed to visualize the type of sellable second-hand merchandise that would be capable of being stored thereon. In any event, it is apparent as reinforced by the very issues raised by the plaintiff that the plaintiff has failed to demonstrate by clear and convincing evidence, the common law requirements of hostile possession, under a claim of right, which was actual, open and notorious, exclusive, and continuous for the statutory ten year period. Therefore, LBA's motion and Prudential's cross motion for summary judgment to dismiss the plaintiff's amended complaint for ownership by adverse possession to that parcel of property comprising 170 Johnson Avenue, Block 3071, Lot 10, is granted. This constitutes the decision [*6]and Order of this Court.

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