O'Mara v Ludwig

[*1] O'Mara v Ludwig 2006 NY Slip Op 51016(U) [12 Misc 3d 1163(A)] Decided on May 31, 2006 Supreme Court, Suffolk County Pines, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 31, 2006
Supreme Court, Suffolk County

ELISSA B. O'MARA f/k/a ELISSA B. MAHER, Plaintiff,

against

WARREN H. LUDWIG, ABN AMRO MORTGAGE GROUP, INC., and PHILIP GARDNER and JOHN DOE 2, Defendants.



003 004 12847-2004



ATTORNEY for PLAINTIFF

ROBERT G. STEINBERG, ESQ.

STEINBBERG & BOYLE, LLP

136 EAST MAINS TREET

EAST ISLIP, NEW YORK 11730

ATTORNEY for DEFENDANT

DANIEL GOBETZ, ESQ.

220 LAKE AVENUE

ST. JAMES, NEW YORK 11780

Emily Pines, J.

ORDERED, that the motion (motion sequence no. 003) of Plaintiff for summary judgment is denied for the reasons set forth below; and it is further

ORDERED, that the cross-motion (motion sequence no. 004) of [*2]Defendant [FN1] for summary judgment dismissing the complaint is granted and the complaint is dismissed.

Plaintiff commenced this action pursuant to RPAPL Article 15 seeking an Order adjudicating that she is the lawful owner of certain property having acquired title to same by adverse possession. By Order (OLIVER, J.) dated October 8, 2004, defendants were enjoined and restrained during the pendency of this action from trespassing upon, inflicting damage to, and disturbing and interfering with Plaintiff's quiet enjoyment of the disputed property and further enjoined from entering upon the disputed strip of land or removing the fence, pool, or gravel driveway or any other improvement existing on said strip of land. As a condition of the preliminary injunction, Plaintiff was required to post an undertaking in the amount of $500.00.

The essential facts of the case are not in dispute. Plaintiff acquired title to property located at 245 Richmond Boulevard, Lake Ronkonkoma by deed from Gunda Abajian ("Abajian"), the prior owner, on or about April 26, 1990. At the time of the acquisition, plaintiff obtained title insurance from American Title Insurance Company, who listed among the exceptions to coverage as follows:

9.Survey by Krause Land Surveyors dated 10/8/76 shows a 1 ½ story frame dwelling. Fences vary with record lines of title. Concrete terrace at rear of premises. Inspection dated 4/28/90 disclosed; Fences and hedges added (not located), 3 doggie dormers and hanging bay windows at front of building, frame dog house, concrete patio and concrete slab at rear of premises. No other changes.

Emphasis added.

It appears undisputed that at the time Plaintiff acquired the property at 245 Richmond Boulevard, a fence encroached approximately 33.20 feet onto the adjacent property, 251 Richmond Boulevard, which property is owned by Defendant. Defendant acquired title to the 251 Richmond Boulevard property by deed from Christopher K. Tong and Alice S. Tong (the "Tongs") dated November 12, 2003. It is also undisputed that on November 26, 1985, Abajian and the Tongs entered into an agreement wherein it was acknowledged by Abajian that the fence encroached 33.20 onto [*3]Tong's premises and that he had "no right, title or interest in and to any portion of Tong's' premises".[FN2] The agreement also provided the license to encroach was revocable on thirty (30) days notice by Tong. Finally, the agreement provided that it would run with the land and be binding upon and inure to the benefit of the respective heirs, executors, administrators, successors and assigns of Tong and Abajian. Unfortunately, neither Tong nor Abajian recorded the agreement.

On or about September 14, 2003, in apparent preparation for the sale of 251 Richmond Boulevard, Tong's lawyer sent a letter to Plaintiff terminating the agreement. Plaintiff alleges that she was not even aware of this agreement until sometime in August of 2003 when either Tong, or someone on his behalf, handed her son a copy of the agreement over the fence. Thereafter, on or about October 20, 2003, Defendant sent a letter to Plaintiff requesting that she remove the fence, driveway and retaining walls that encroach onto 251 Richmond Boulevard. Plaintiff thereafter commenced the instant action seeking a declaration that she acquired the subject premises, specifically, the 33.20 feet of Defendant's property, by adverse possession. The uncontroverted submissions reflect that this portion of the Defendant's property is enclosed by a fence that extends from Plaintiff's property and also that there is an above ground pool, a deck, railroad ties and a driveway that straddle Plaintiff's property and the Defendant's property within this 33.20 feet.

Defendant testified at his examination before trial (annexed to the moving papers) that he was aware of the encroachment prior to his acquisition of 251 Richmond Boulevard, having been advised by the real estate agent. Moreover, Defendant's title insurance policy issued, by Chicago Title Insurance Company, specifically noted as an exception to coverage, that "fence on west is an undetermined distance east of the westerly record line. The insured may be out of possession of a strip of land having a maximum width of undetermined distance lying east of the westerly record line of title. Title to said strip of land is not insured." Defendant further testified that he believed that Plaintiff was aware of the agreement prior to his acquisition of the property but has not provided any evidence to corroborate this conclusory assertion. Neither Plaintiff nor Defendant has annexed the transcript of Plaintiff's examination before trial to their motion papers. [*4]

Plaintiff now moves for summary judgment on her complaint on the ground that she has acquired title to the property in dispute by adverse possession. Plaintiff argues that she has met the five (5) elements required to sustain her claim of adverse possession. Specifically, she claims that her possession of the disputed property has been hostile and under a claim of right; that she has actually possessed the disputed property; that her possession has been open and notorious, exclusive and continuous for the statutory ten (10) year period. Because the Court finds that Plaintiff cannot demonstrate that her use and occupancy of the subject premises is under a claim of right, her claim of adverse possession must fail.

It is well settled that to obtain title to a parcel by adverse possession, a party must establish by clear and convincing evidence that his or her possession of the parcel is hostile, under a claim of right, actual, open, notorious, exclusive and continuous for a period of 10 years or more. Oak Ponds v. Willumsen, 295 AD2d 587, 745 NYS2d 44 (2d Dept. 2002); Ryan v. Dowicz, 306 AD2d 396, 761 NYS2d 286 (2d Dept. 2003); Dittmer v. Jacwin Farms Inc., 224 AD2d 477, 637 NYS2d 785 (2d Dept. 1996). If any one of these elements is missing, the alleged possession will not effect a change in legal title. Perry v. Young Israel, 27 AD3d 652, 812 NYS2d 605 (2d Dept. 2006). Moreover, pursuant to RPAPL §522(1) and (2), when the claim to adverse possession is not based on a written instrument, the party must show that the parcel was either usually cultivated or improved or protected by a substantial enclosure. Beyer v. Patierno, __A.D.3d __, __N.Y.S.2d __, 2006 WL 1304875 (2d Dept. 2006); Dunkin Donuts v. Mid-Valley Oil Co., 14 AD3d 590, 789 NYS2d 204 (2d Dept. 2005).

In the case sub judice, plaintiff has established that by the erection and maintenance of a fence, pool, deck, flower beds, lawn and driveway on the parcel since her acquisition in 1990, that her possession has been actual, open and notorious and protected by a substantial enclosure. Additionally, as the fence appears to fully enclose the disputed parcel to the exclusion of both the Defendant and prior owner, it can be found that Plaintiff's possession has been exclusive and hostile to that of Defendant, even though it may have occurred inadvertently or by mistake. See, Randisi v. Mira Gardens, Inc., 272 AD2d 387, 707 NYS2d 204 (2d Dept. 2000). However, the Court's analysis cannot stop here; Plaintiff must demonstrate that her possession of the parcel has been under a claim of right. Kings Park Yacht Club, Inc., v. State of New York, 2 AD3d 357, 809 NYS2d 551 (2d Dept. 2006); Orsetti v. Orsetti, 6 AD3d 683, 775 NYS2d 369 (2d Dept. 2004). Plaintiff is unable to meet this [*5]burden as her only claim of right is a mistaken belief as to ownership, which is belied by the fact that neither her deed, title insurance policy or survey purport to establish any claim in the disputed parcel. In fact, Plaintiff's own title insurance policy notes that the "fences vary with record lines of title", thus alerting plaintiff to the discrepancy. Additionally, Plaintiff cannot allege any claim of right stemming from the prior owner as he had express, written permission to occupy the disputed parcel while disclaiming any ownership interest therein.

Based upon the foregoing, Plaintiff's motion for summary judgment is denied and Defendant's cross-motion for summary judgment dismissing the complaint is granted and the action is dismissed. The preliminary injunction granted by Order (OLIVER, J.) dated October 8, 2004 is hereby vacated.

The foregoing constitutes the Decision and Order of the Court. Footnotes

Footnote 1:Defendant ABN AMRO is the mortgagee of 251 Richmond Boulevard and Philip Gardner is a tenant of 251 Richmond Boulevard.

Footnote 2:The Court notes that there was a prior boundary line agreement, dated November 3, 1969, between the former owners of 245 Richmond Boulevard (the Klages) and 251 Richmond Boulevard (Donovan). This agreement set the boundary line as depicted on the survey used by plaintiff when she purchased 245 Richmond Boulevard.