Gallagher v Cross Hill, LLC

[*1] Gallagher v Cross Hill, LLC 2006 NY Slip Op 52637(U) [21 Misc 3d 1115(A)] Decided on April 20, 2006 Supreme Court, Schoharie County Lamont, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 20, 2006
Supreme Court, Schoharie County

James L. Gallagher, JR., CYNTHIA J. HEVEY, JAMES L. GALLAGHER, III, WILLIAM A. and SARA B. SESTITO, MICHAEL R. HEVEY, JAMES M. HEVEY and PATRICIA J. (HEALEY) INFUSINO, Plaintiffs,

against

Cross Hill, LLC, Defendant.



05-0013



APPEARANCES:

YOUNG, SOMMER ... LLC

By: MICHAEL J. MOORE, ESQ., of counsel

for Plaintiffs

EDWARD WILDOVE, ESQ.

for Defendant

Dan Lamont, J.

Plaintiffs bring this action pursuant to Article 15 of the Real Property Actions and Proceedings Law to compel the determination of claims to certain real property in the Town of Richmondville, County of Schoharie specifically a 1.87 acre parcel of land adjacent to their property. Plaintiffs have filed a motion pursuant to CPLR § 3212 for an order granting summary judgment awarding them title to the disputed real property. Defendant has filed affidavits in opposition, and plaintiffs have filed replies thereto.

BACKGROUND

Plaintiffs commenced the instant action to obtain title by adverse possession to a 1.87 acre parcel of real property adjacent to their approximately 14.31 acre parcel, and included within defendant's deeded approximately 400 acre parcel of real property. Plaintiffs have submitted the affidavits of the following individuals attesting to the following facts:

A) Jean (Mercer-Gallagher) Dittrick ("Jean"): Jean was the owner of the [*2]plaintiffs' property from 1956 through 1965 and still visits the property frequently with the current family member owners. Jean asserts that during her period of ownership, her husband and she exclusively fenced, used and occupied the disputed parcel, to the exclusion of all other persons. In 1956, defendant's real property was owned by Howard Hadsell. At that time the "fence line" was used as the boundary for where Mr. Hadsell's dairy cows grazed. Remnants of that fence line are still in existence today. This fence line is depicted in a survey map done by Rudolph D. Snyder, L.S., entitled "A Survey for John Sherwood Associates, Inc." dated September 22, 1987. This survey map was filed in the Schoharie County Clerk's Office on March 9, 1992 and on September 7, 1999. The fence line has also been depicted in the surveys done for plaintiffs by JoAnne Darcy Crum, L.S. Jean's affidavit in conjunction with a photograph taken in 1965 show an old outhouse (which was burned down in 1984) standing within the disputed parcel of property. Jean also asserts that a chicken house, goat barn and a gravity fed shower structure were built in the disputed parcel during her period of ownership. In 1972, Jean's former husband sold the property to their children James Gallagher, Jr. and Cynthia (Gallagher) Hevey.

B) Cynthia Hevey ("Cynthia"): Cynthia has been a co-owner of plaintiffs' property since 1972. During many summers after her parents purchased their property in 1956, Cynthia worked as a farmhand for the neighboring property owner, Howard Hadsell. Mr. Hadsell erected the barbed wire fence to enclose the grazing area for his dairy cattle and treated the fence line as the parties' property line at the time. Cynthia and her family repaired this fence every year as needed well into the 1980s. A cart path ("farm lane") contained within the disputed parcel was also frequently used over the years by plaintiffs and their predecessors in title and interest.

C) Michael R. Hevey ("Michael"): Michael (32 years old) is the son of Cynthia and avers to the same facts as set forth by Jean and Cynthia with regards to the outhouse, fence line, and farm lane that were present during his lifetime. On October 22, 2004, Michael took photographs of the current condition of the barbed wire fence line, establishing its existence, and the location of a posted sign on that date.

D) Barbara Haas ("Barbara"): Barbara is Jean's sister and also spent a significant amount of time at plaintiffs' property over the years. Barbara's affidavit authenticates a photograph of the property taken in 1955 showing the location of the old outhouse.

E) James L. Gallagher, Jr. ("James"): James is Jean's son and Cynthia's brother and was a co-owner of plaintiffs' property from 1972-1989. James avers to essentially the same facts set forth by Jean and Cynthia with regards to the outhouse and fence line. James also avers that Howard Hadsell during the 1950s paid him five cents for every woodchuck he shot and hung on the fence line separating their property (referred to as "a nickel a nose"). James authenticates: (1) a photograph of the old outhouse being burned down in 1984 with posted signs around it; (2) a photograph taken about 1957 showing a portion of the existing fence; (3) a photograph taken about 1968 showing the old outhouse and a posted sign, allegedly placed by defendant's predecessor in title and interest, Sherwood; (4) a photograph taken around 1975 showing the old outhouse and a portion of the fence; and (5) a photograph taken during [*3]the 1970s showing the old outhouse and a portion of the fence. James also avers that an old dump was contained within the disputed area prior to 1957 and that his father hired a contractor to fill the dump area with dirt and grade it off. Finally, James avers that he and his family granted defendant's predecessor in interest (John Sherwood) permission to use an area of the disputed parcel as a storage and staging area for timber and equipment once in the 1970s and once in the 1980s. In 1972, James conveyed his interest in the property to his daughter and her husband and to his son.

The plaintiffs aver that the boundary line of their property, including the "disputed area," has never been contested until defendant Cross Hill, LLC in 2001 purchased the real property previously owned by Howard Hadsell and John Sherwood Associates, Inc.

Defendant has submitted the affidavits of Anton Pepgjonaj and Elio Ricci, members of defendant Cross Hill, LLC, in opposition to plaintiffs' motion. Defendant's two affidavits are virtually identical and state: (1) since defendant purchased the property in August of 2001, the disputed 1.87 acre parcel has not been used or occupied by plaintiffs; and (2) that Pepgjonaj and Ricci spent at least two days a month at this property when it was purchased and the property is not fenced and there is no evidence that this parcel has been used by the plaintiffs for any reason whatsoever.

THE LAW

To obtain summary judgment, it is necessary that movant establish his cause of action "sufficiently to warrant the court as a matter of law in directing judgment" in his favor (Friends of Fur Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]; CPLR § 3212(b)). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any genuine material issues of fact from the case. The failure to make such a showing mandates denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegard v. New York Univ. Med. Center, 64 NY2d 851 [1985]).

Once that showing is made, the burden shifts to the party opposing the motion for summary judgment to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). In order to defeat a motion for summary judgment, the opponent must present evidentiary facts sufficient to raise a triable issue, and averments merely stating conclusions are insufficient (Bethlehem Steel Corp. v. Solow, 51 NY2d 870 [1980]; Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338 [1974]). A party opposing summary judgment must assemble, lay bare and reveal his evidentiary proof in admissible form to establish a triable issue of fact (Zuckerman v. City of New York, supra; Castro v. Liberty Bus Co., 79 AD2d 1014 [2nd Dept. 1981]). An opposing affidavit of an attorney without personal knowledge of the facts has no probative value and should be disregarded (Noha v. Gurda, Gurda, & Tatz, 178 AD2d 731 [3rd Dept. 1991]; see also, Rubin v. Rubin, 72 AD2d 536 [1st Dept. 1979]; Valenti v. Purdy, 71 AD2d 1019 [2nd Dept. 1979]).

Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (Sternbach v. Cornell University, 162 [*4]AD2d 922, 923 [3rd Dept. 1990]). The focus is upon issue finding, not issue resolving, and all inferences and evidence must be viewed in a light most favorable to the party opposing the motion for summary judgment (see, B. S. Industrial Contractors, Inc. v. Town of Wells, 173 AD2d 1053 [3rd Dept. 1991]).

CONCLUSIONS OF LAW

"Generally, where a party seeks to establish title by adverse possession, it is incumbent upon the party to demonstrate by clear and convincing evidence that for a period of 10 years it actually possessed the property in dispute and that such possession was open and notorious, exclusive, continuous, hostile and under a claim of right'" (Kitchen v. Village of Sherburne, 266 AD2d 786 [3rd Dept. 1999]; citing Village of Castleton-On-Hudson v. Keller, 208 AD2d 1006 [3rd Dept. 1994]; see also, Brand v. Prince, 35 NY2d 634 [1974]). 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 substantial inclosure" (Giannone v. Trotwood Corp., 266 AD2d 430 [2nd Dept. 1999]).

This Court holds and determines that plaintiffs have established prima facie entitlement to judgment as a matter of law (Friends of Fur Animals, Inc. v. Associated Fur Manufacturers, Inc., supra) through the submission of multiple affidavits, photographs, and survey maps thereby providing clear and convincing evidence that the disputed parcel was fenced, used and even had structures built within it in the past for a period well in excess of 10 years (dating back to at least 1956). The burden then shifts to the defendant to establish the existence of material issues of fact which require a trial.

Defendant's brief and conclusory affidavits fail to create any issues of fact regarding plaintiffs' adverse possession of the disputed property. Defendant has failed to rebut or create any issue of fact with regard to the status and condition of the disputed property prior to its ownership in 2001 by submitting affidavits from any of its predecessors in interest including John Sherwood. As early as 1987, by virtue of the Rudolph D. Snyder survey, defendant's predecessors in interest were aware of the disputed nature of the 1.87 acre parcel. According to the undisputed affidavit of James L. Gallagher, Jr., defendant's predecessor in interest, John Sherwood Associates, Inc., through John Sherwood, requested permission from plaintiffs to use the disputed parcel once in the 1970s and once in the 1980s.

While the disputed area may not have been entirely fenced at the time of defendant's purchase in August of 2001, there can be no dispute, by virtue of the photographs submitted by plaintiffs, that a fence previously existed and that portions of the fence still existed as recently as October of 2004. Accordingly, this Court holds and determines that defendant's brief and conclusory affidavits fail to create any issue of fact regarding plaintiffs' adverse possession claim well in excess of the ten (10) year statutory time period, prior to defendant's ownership. Plaintiffs' motion for summary judgment must be and the same is hereby granted without costs.

CONCLUSION

This Court holds and determines that the plaintiffs' motion for summary judgment must be and the same is hereby granted without costs. Plaintiffs are hereby adjudged [*5]the lawful owners of the disputed 1.87 acre parcel of property and are hereby granted sole and complete title and possession to the disputed 1.87 acre parcel of land; forever barring defendant Cross Hill, LLC, and all persons claiming under it from claiming any estate or interest in said 1.87 acre parcel of land.

This Memorandum shall constitute both the Decision and Order of the Court. All papers, including this DECISION/ORDER, are being returned to the plaintiffs' attorney. The signing of this DECISION/ORDER shall not constitute entry or filing under CPLR § 2220. Plaintiffs are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

Plaintiffs are directed to submit a proposed Judgment on notice to defendant.

Dated: Schoharie, New York

April 20, 2006

ENTER

_______________________________________

DAN LAMONT, Acting J.S.C.

cc: Michael J. Moore, Esq.

Edward Wildove, Esq.