Healy v Amedore Quantum, LLC

[*1] Healy v Amedore Quantum, LLC 2009 NY Slip Op 51541(U) [24 Misc 3d 1221(A)] Decided on June 24, 2009 Supreme Court, Albany County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2009
Supreme Court, Albany County

Robert L. Healy, Jr., Plaintiff,

against

Amedore Quantum, LLC and Pioneer Savings Bank, Defendants.



Amedore Quantum, LLC and Pioneer Savings Bank, Third-Party Plaintiff,

against

Jay Grossman, Richard Ball, Hershberg & Hershberg and Francis G. McCloskey, Third-Party Defendants.



6751-08



Farer & Schwartz, PC

Attorneys for Plaintiff

(Steven D. Farer, Esq., of Counsel)

12 Century Hill Drive

Latham, New York 12110

Englert, Coffey & McHugh

Attorneys for Defendants

(Peter V. Coffey, Esq., of Counsel)

PO Box 1092

Schenectady, New York 12301-1092

Herzog Law Firm P.C.

Attorneys for Third-Party Defendant Grossman

(Keith J. Roland, Esq., of Counsel)

7 Southwoods Boulevard

Albany, New York 12211

Michael C. Lynch, J.

Plaintiff, who claims ownership to certain real property by adverse possession, commenced this action for a declaration of title pursuant to Articles 5 and 15 of the Real Property Actions and Proceedings Law by summons and complaint filed on August 8, 2008. The action is governed by the revised provisions of RPAPL Article 5 (see L. 2008, Ch. 269, effective July 7, 2008).

Before the Court is plaintiff's motion to strike the affirmative defense set forth in the respective answers of defendants and third-party defendants that the complaint fails to state a cause of action. Specifically, defendants and third-party defendants assert plaintiff has not met the requirements of an adverse possession claim. Such a defense merely controverts plaintiff's claim and is "harmless surplusage" (Pump v. Anchor Motion Frgt., 138 AD2d 849, 851). Accordingly, plaintiff's motion to strike is denied as unnecessary (Id.).

The defendants have also filed a cross motion for an award of summary judgment dismissing the complaint.

To prevail on an adverse possession claim, a plaintiff must demonstrate that his possession of the subject parcel was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period of 10 years (see Walling v. Przybylo, 7 NY3d 228, 232; RPAPL §521). Under the revised statute, there must be "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner as the case may be" (RPAPL §501[3]). Where, as here, the claim is not founded upon a written instrument, "land is deemed to have been possessed and occupied... (1) where there have been acts sufficiently open to put a reasonably diligent owner on notice [*2](or) (2) where it has been protected by a substantial enclosure, except as provided in subdivision one of section five hundred forty-three of their article" (RPAPL §522). Notably, §543 precludes a claim as adverse where the possessory acts are

de minimis.

On a motion for summary judgment, the Court views the evidence in a light most favorable to the non-moving party, and accords that party the benefit of every reasonable inference in determining whether a triable issue of fact exists (see Boyce v. Vazquez , 249 AD2d 724, 726). A review of the complaint and plaintiff's affidavits submitted in support of his claim demonstrates that plaintiff acquired title in the property at 878 New Scotland Avenue in Albany, New York from his parents' corporation in 2004. His parents acquired title to this residence in 1968 and his mother continues to reside at the residence. Plaintiff grew up in the family home and both he and his mother aver that the disputed parcel has been utilized as part of their yard throughout this period. The activities recited including the construction of a tree house and location of an above ground swimming pool, are not de minimis within the scope of RPAPL §543. In her supporting affidavit, Mrs. Healey affirms her belief that the disputed parcel was including in the transfer of the residence to her son in 2004. These submissions establish a factual basis for plaintiff's claim, including tacking on the asserted adverse possession of the disputed parcel by his parents (see Brand v. Prince, 35 NY2d 634, 637; Eddyville Corporation v. Relyea, 35 AD3d 1063).

Accordingly, plaintiff's motion to strike is hereby denied; and defendants' cross motion for summary judgment is hereby denied, all without costs.

This Memorandum constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to the attorneys for plaintiff. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

SO ORDERED!

ENTER.

Dated: Albany, New York_______________________________________

June, 2009Michael C. Lynch

J.S.C.