Serafin v Dickerson

[*1] Serafin v Dickerson 2009 NY Slip Op 52035(U) [25 Misc 3d 1211(A)] Decided on October 8, 2009 Supreme Court, Bronx County Walker, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2009
Supreme Court, Bronx County

Emma Serafin, Plaintiff(s),

against

Percy Dickerson, Defendant(s).



260125-2008



Plaintiff:

Carpriano Litchman & Flach, LLP

By: Eleanor Flach

80 Wall Street, Suite 910

New York, NY 10005

(212) 269-3444

Defendant:

Robert A. Laureano, Esq.

910 Grand Concourse

Bronx, NY 10451

(718) 588-8017

Edgar G. Walker, J.

Motion and Cross-motion are resolved as follows:

FACTS: In 1965, Plaintiff's husband, Savlatore Serafin, acquired commercial property at 4160-4168 White Plains Road in Bronx, New York, ("Subject Property") by deed of sale.[FN1] Over the course of more than forty-two years of ownership, Salvatore Serafin visited the premises approximately once per month.[FN2] Plaintiff accompanied her husband "twice or three times" on these visits.[FN3] She did not visit the property after his death in 2007.[FN4] Before this proceeding, Plaintiff had never seen the encroaching structures at issue, nor had she heard Salvatore or her [*2]tenants mention any encroaching structures.[FN5][FN6]

On October 21, 1971, Defendants purchased residential property adjacent to the Subject Property ("Adjacent Property").[FN7] The Adjacent Property included a residential lot and a two-family residence. Defendants attest that the encroaching structure at issue, a concrete strip running north-south along the eastern edge of the Adjacent Property, was present when they took possession in 1971.[FN8] Defendants have utilized and continue to use this strip as a means of egress from the Property's first-floor apartment unit and for garbage bin storage. [*3]

Defendants attest that they personally performed and contracted third parties for repairs on the encroaching structure over the course of their ownership and that their use of the concrete strip was continuous, open and notorious, and exclusive for more than thirty-seven years.[FN9] [FN10]

On September 10, 1997, Defendants hired a contractor to remove and replace the concrete strip.[FN11]

In 2000, Defendants contracted to install a chain-link fence enclosing the concrete walkway.[FN12]

Pursuant to the Last Will and Testament of Salvatore Serafin,[FN13] title to the Subject Property was transferred to Plaintiff via executor's deed recorded November 27, 2007 [FN14].

On February 26, 2008, Plaintiff employed a surveyor to prepare a survey of the Subject Property.[FN15] The survey showed that a rectangular portion of Defendants' concrete walkway encroached an average depth of approximately 3.2 feet onto the Subject Property, and the chain-link fence surrounding the concrete strip encroached an average of approximately 3.3 feet.[FN16]

PROCEDURAL HISTORY: Plaintiff commenced a special proceeding (later converted into an action) by filing a Notice of Petition dated April 29, 2008, alleging Defendants' concrete strip and chain-link fence encroach upon the Subject Property, that the encroachment diminished Plaintiff's full use and enjoyment of the premises, and that the encroachment decreased the value [*4]of the Subject Property.[FN17] Defendants counter-claimed for title to the disputed area through adverse possession.

Both Plaintiff and Defendants filed motions for summary judgment pursuant to CLPR 3212. Plaintiff alleges an encroachment and prays for injunctive and monetary relief. Defendants allege adverse possession.

QUESTIONS PRESENTED: This case presents the question of whether Plaintiff has established a prima facie case that she is entitled to relief in equity or damages because Defendants' concrete strip and chain-link fence encroach upon her property and, if so, whether Defendants have presented evidence raising a material issue of fact sufficient to deny Plaintiff's motion for summary judgment. Additionally, this court is called upon to determine whether Defendants have established a prima facie case that they have acquired title through adverse possession and whether material questions of fact exist as to whether the elements of adverse possession have been satisfied.

LEGAL STANDARDS: A motion for summary judgment must be granted if "upon all papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" and no issue of fact material to the judgment remains outstanding. CLPR 3212(a) (McKinney 2009). Once the moving party makes a prima facie showing of entitlement to summary judgment the burden shifts to the opposing party to produce evidence sufficient to raise a question of material fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS2d 923, 925 (1986).

All elements adverse possession must be proven by clear and convincing evidence, Walling v. Przybylo, 7 NY3d 228, 232, 851 NE2d 1167, 1169 (2006), with the burden for proving all elements resting upon the adverse claimant, Joseph v. Whitcombe, 279 AD2d 122, 125, 719 NYS2d 44, 47 (1 Dept. 2001).

Adverse possession is defined as follows: "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." NY Real Prop. Acts. Law § 521 (McKinney 2009). To establish adverse possession not under written instrument, the adverse possessor's occupation must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required statutory period. Walling, 7 NY3d at 232, 851 NE2d at 1167, 1169. In addition, adverse possession requires that the land has been "usually cultivated or improved" or "protected by a substantial enclosure" for the statutory period. NY Real Prop. Acts. Law §§ 522(1)-(2).

In order to recover possession of real property against an adverse claimant, the record owner of the property must commence an action within ten years of the beginning of the adverse claim. See CLPR 212(a).

DETERMINATION: Plaintiff's motion for summary judgment should be denied because Defendants have raised an issue of fact as to whether they have obtained title to the premises [*5]through adverse possession. Defendants meet their burden on all elements of adverse possession concerning the disputed concrete strip, to which Plaintiff has not raised any material issues of fact. Therefore, this court must grant Defendants' motion for summary judgment and hold in favor of their adverse possession claim.

THE CONCRETE STRIP: Plaintiff has established a prima facie case that she is the record owner of the property where the disputed concrete strip is set.[FN18] In order to defeat Plaintiff's motion for summary judgment, Defendants must bring evidence sufficient to establish a prima facie case for adverse possession or prevail upon one of their other affirmative defenses.

Hostile and Under Claim of Title:[FN19] "Claim of [title] may arise when the adverse possessor is title owner of the adjacent parcel, whose original boundaries extended to the disputed parcel or whose use of the disputed structure derived from prior ownership." Joseph, 279 AD2d at 126, 719 NYS2d at 47. Defendants' claim of title over the disputed concrete strip is predicated on a condition that existed at the time of their initial occupancy. Specifically, Defendants' aver that the encroaching strip existed when they originally took possession of the Adjacent Parcel in 1971.[FN20] [FN21] [*6]

In opposition, Plaintiff offers evidence suggesting that Defendants' cultivation of the property was actually permissive use. In 2001, Plaintiff paid Defendant Percy Dickerson to clean the and trim weeds behind the Subject Property.[FN22] Mr. Dickerson performed these tasks on the back lot area between Plaintiff's building and the disputed concrete strip, not on the strip itself. When this event took place Plaintiff was unaware of Defendants' encroachment and, therefore, could not have given permissive use regarding it.[FN23] Therefore, Plaintiff's hiring of Mr. Dickerson to maintain her property is immaterial to Defendants' adverse possession claim and does not raise a material issue of fact.

Additionally, the element of "[h]ostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner ." United Pickle Prod. Corp. v. Prayer Temple Cmty. Church, 43 AD3d 307, 309, 843 NYS2d 1, 2 (1 Dept. 2007).

Actual Possession:Defendants' evidence is sufficient to satisfy their prima facie burden to show the concrete strip actually existed for the statutory period.

Defendants offer three affidavits asserting that the concrete strip was present in 1971,[FN24] in which case the statutory period would have run by 1981. Plaintiff offers no evidence to dispute the accuracy of Defendants' claims, arguing only that they are insufficient to meet the clear and convincing evidentiary standard required for satisfaction of the elements of adverse possession.

Assuming, arguendo, that these affidavits alone fail to provide clear and convincing evidence of the actual existence of the concrete strip since 1971, Defendants' provide a 1986 construction [*7]invoice which they claim refers to the concrete strip. Using this evidence as a baseline, the statutory period would have run by 1996.

However, Plaintiff argues that Defendants' 1986 construction invoice does not refer to the concrete strip.[FN25] [FN26] Even assuming that Plaintiff is correct, Defendants provide an additional construction invoice from 1997 describing the complete removal and replacement of the concrete strip.[FN27] Plaintiff does not dispute that this document refers directly to the encroachment at issue. The invoice establishes the existence of the walkway prior to September 10, 1997, over ten years before Plaintiff's claim was filed with this Court. Plaintiff offers no other evidence or argument to dispute information contained in the 1997 invoice.

Open and Notorious: The "open and notorious possession" element of adverse possession ensures that the record owner of real property will have knowledge of the adverse possessor's hostile claim. Seward Park Hous. Corp. v. Cohen, 287 AD2d 157, 163, 734 NYS2d 42, 48 (1 Dept. 2001). Plaintiff denies any knowledge that she, her husband, or her tenants knew of the concrete strip prior to 2007, when title to the Subject Property was transferred from Salvadore to herself. However, Plaintiff admits that her husband visited the Subject Property once per month [*8]during more than forty-two years of ownership: approximately 500 occasions.[FN28] It is likely that during one of these visits Salvadore saw the portion of the property upon which the concrete strip rests.

However, even assuming that Mr. Serafin never saw the encroaching structure at issue, "[w]here there has been no actual knowledge, it can be shown that the possession or use was so open, notorious, and visible as to support an inference that the owner must or should have known about it." Id. at 164, 734 NYS2d at 48. Defendants openly maintained the encroaching concrete strip within twelve feet of the commercial building occupying the Subject Parcel.[FN29] The disputed concrete strip is part of a solid slab of concrete, much of which is set on property of which Defendants are record owners.[FN30] Defendants' possession is "real, and not constructive, so that it shall be visible" and "indicate[s] exclusive ownership of the property." Ramapo Mfg. v. Mapes, 216 NY 362, 372, 110 N.E. 772, 776 (1915). Plaintiff cannot rebut the inference that she or her predecessor knew or should have known of Defendants' adverse claim by declaring that they did not know about the encroachment.

Exclusive and Continuous: Defendants' affidavits state they possessed the "steps and walkway exclusively, continuously and openly, with no one else having access to these areas."[FN31] Plaintiff presents no evidence to contradict this assertion. Photographic evidence suggests that neither Plaintiff nor her lessees made use of the concrete strip.[FN32] No other party asserts a claim of title over the disputed concrete strip.

Cultivation or Improvement:[FN33] Adverse possession may be established by tacking together successive possessions of persons in an unbroken chain of privity. See Belotti v. Bickhardt, 288 NY 296, 306, 127 N.E. 239, 242-43 (1920). Defendants' provide affidavits claiming their predecessors placed the concrete strip.[FN34] In addition, Defendants claim they personally [*9]cultivated the concrete strip and provide invoices showing that on at least three occasions they hired contractors to maintain, replace, or attach additional improvements to the disputed land.[FN35]

"The requisite character of the acts of [cultivation or] improvement sufficient to supply the record owner with notice of an adverse claim will vary with the nature and situation of the property and the uses to which it can be applied.'" See generally Ray v. Beacon Hudson Mtn. Corp., 88 NY2d 154, 160, 643 NYS2d 939, 942 (1996) (citation omitted); Ramapo Mfg., 216 NY at 372, 110 N.E. at 776; Blumenfeld v. DeLuca, 24 AD3d 405, 405, 807 NYS2d 99, 100 (2 Dept. 2005); Gaglioti v. Schneider, 272 AD2d 436, 437, 707 NYS2d 239, 241 (2 Dept. 2000); Groman v. Botar, 228 AD2d 412,412-13, 644 NYS2d 58, 59 (2 Dept. 1996). Defendants use the disputed property as a means of egress from the ground-floor unit of their two-family residence and utilize part of the space for garbage bin storage.[FN36] The concrete strip enables these uses, and Defendants' preservation measures prevented the decay of the concrete strip perpetuated its usefulness.

These acts by Defendants and their predecessors sufficed to give Plaintiff and her predecessor notice of Defendants' adverse claim. Cf. Hall v. Sinclaire, 35 AD3d 660, 826 NYS2d 706 (2 Dept. 2006) (finding that the adverse possessor's consistent plowing and resurfacing of disputed portion of a shared driveway over the statutory period sufficed to show usually cultivation or improvement); Goss v. Trombly, 39 AD3d 1128, 1130, 835 NYS2d 493, 495 (3 Dept. 2007) ("Plaintiff plowed the driveway and scraped ice from it in winter, mowed grass alongside it, trimmed overhanging trees and had truckloads of gravel hauled in twice to fill in ruts. These maintenance activities are similar to those conducted by most owners of driveways and are consistent with the nature of the use of this property as a driveway."); Moore v. City of Saratoga Springs, 296 AD2d 707, 708, 745 NYS2d 238, 239 (3 Dept. 2002) ("Plaintiff testified to his maintenance of the parking lot by plowing it every winter and by removing occasional debris. He further detailed his cultivation of the remainder of the area by the planting of a lawn on the vacant portion, which was mowed continuously once the grass was established. Finally, Plaintiff testified that he paid for repairs to the sidewalk on the gore strip when three slabs of concrete had to be replaced."). As such, Defendants' meet their prima facie burden of having usually cultivated or improved the concrete strip over the statutory period.

Plaintiff makes two legal arguments why "[Defendants] cannot show the property was usually cultivated or improved' within the meaning of [NY Real Prop. Acts. Law] § 522(1)": (1) that the "encroachment is not the walkway, but is a piece of concrete where Defendants keep their trash,"[FN37] and (2) that Defendants fail to meet the evidentiary standards set in Gaglioti.[FN38]

As to Plaintiff's first argument that the encroachment is not a walkway: The cultivation or improvement element examines whether the adverse possessor's actions are "usual in the ordinary cultivation and improvement of similar lands by thrifty owners.'" Ray, 88 NY2d at 160, 643 NYS2d at 942. Plaintiff argues that, categorically, Defendants' use of the concrete strip to store garbage bins prevents satisfaction of the cultivation or improvement requirement. This argument does not rebut Defendants' prima facie showing that they usually cultivated or improved the land, and Plaintiff cites no law consistent with the proposition that garbage bin storage is an atypical use or that an improvement in [*10]the form of a concrete strip is inconsistent with that use. In any event the record clearly established that the concrete strip was used primarily as a walkway.

As to Plaintiff's second argument: Plaintiff incorrectly analogizes the facts of Gaglioti to the instant case. In Gaglioti, the adverse possessor laid sod and planted bushes on the front portion of a disputed strip of land between neighboring properties. On the back portion of the disputed strip the adverse possessor constructed a concrete walkway. The trial court determined that the adverse possessor had satisfied the elements of adverse possession for the front portion, but not the back portion, of the disputed strip. The Appellate Division, Second Department, reversed in part, holding that the adverse possessor's cultivation and improvement of the back portion€"consisting of a walkway inlaid with decorative bricks and additional shrubs lining its edges€"were "consistent with the property's character, location, condition, and potential uses." Gaglioti, 272 AD2d at 437, 707 NYS2d at 241.

Inasmuch as Gaglioti informs the instant case, it does so in favor of Defendants. The cultivation or improvement requirement necessitates that the adverse possessor's actions are "usual in the ordinary cultivation and improvement of similar lands by thrifty owners." Ray, 88 NY2d at 160, 643 NYS2d at 942. Although the adverse possessor's actions in Gaglioti met this requirement, they do not constitute a minimal showing of usual or ordinary cultivation or improvement. The concrete strip, as well as Defendants' continuous upkeep and periodic maintenance, are consistent with the character, location, condition, and potential uses of the disputed land.

THE CHAIN-LINK FENCE: In order to compel injunctive or monetary relief from a de minimis encroachment, a claiming party must show that the benefit of removing the encroachment would outweigh the harm caused to the opposing party or that the encroachment resulted in a diminution in property value. Generalow v. Steinberger, 131 AD2d 634, 635, 517 NYS2d 22, 24 (2 Dept. 1987); see Wing Ming Properties, Ltd. v. Mott Operating Corp., 79 NY2d 1021, 1022, 584 NYS2d 427, 427 (1992); Hoffmann Invs. Corp. v. Yuval, 33 AD3d 511, 512, 823 NYS2d 51, 52 (1 Dept. 2006).

Defendant's chain-link fence, built in 2000, has not existed the requisite ten years to satisfy their claim for adverse possession over the fence.[FN39] To the degree that it extends beyond the concrete strip and is not de minimis, the chain-link fence encroaches onto the Subject Property and must be removed.

In support of their motion for summary judgment, Defendants' have presented affidavits attesting that "[t]he fence posts are annexed to and placed in the side of the concrete walkway,"[FN40] photographs which show the chain-link fence closely follows the outline of the concrete strip,[FN41] and a survey, in which the solid line indicating the concrete strip is identical in length to the broken line indicating dimensions of the chain-link fence [FN42]. This evidence is sufficient to satisfy Defendants' prima facie burden of showing the chain-link fence encroachment is de minimis. See generally Wing Ming Properties, Ltd., 79 NY2d 1021, 584 NYS2d 427 (finding that the extent to which the defendants' rooftop air conditioning unit and newly constructed parapet extended into the plaintiff's airspace was de minimis); Hoffmann Invs. Corp., 33 AD3d 511, 823 NYS2d 51 (finding that the defendant's wall encroachment of one-and-one-half to three-and-three-quarter inches was de minimis); Matter of Zhuang Li Cai v. Uddin, 58 AD3d 746, 871 NYS2d 675 (2 Dept. 2009) (holding that an encroachment consisting of fenceposts intruding approximately two inches onto appellant's property was de minimis and did not compel removal); [*11]Generalow, 131 AD2d 634, 517 NYS2d 22 (finding that the defendants' driveway and retaining wall encroachments measuring approximately two feet were de minimis).

The burden having shifted, Plaintiff's evidence fails to raise an issue of material fact as to whether the fence encroachment is de minimis. Plaintiff provides conflicting evidence regarding the dimensions of the chain-link fence surrounding the concrete strip. Affidavit in Support of Petition by Plaintiff's surveyor ("Surveyor's Affidavit") avers that the chain-link fence measures approximately forty-seven feet in length, exceeding the length of the concrete strip by approximately five feet:

As measured from the Subject Properties' eastern boundary (parallel to White Plains Road) the encroachment measures as follows:

Concrete Strip:

Width: 3.7 ft. on the southern end

2.7 ft. on the northern end

Length 42' ñ

Chain link Fence

Width: 3.3 ft. on the southern end

3.2 ft. on the northern end

Length 47' ñ[FN43]

This evidence would suggest that Defendants' fence encloses approximately seventeen square feet of the Subject Property beyond the northern or southern edges of the concrete strip€"land not included in Defendants' claim of adverse possession over the concrete strip.

This assertion, however, is unsupported by any fact of record and is contradicted by the survey upon which Surveyor's Affidavit is based. In addition, Plaintiff also presents a 2000 invoice from the fence construction company indicating that a forty-four foot fence€"not a forty-seven foot fence€"was built.[FN44] Further conflicting with Surveyor's Affidavit, Defendant's photographic evidence shows that the dimensions of the chain-link fence are nearly identical to those of the concrete strip.[FN45]

This court must dismiss Plaintiff's claims for injunctive or monetary relief arising from the de minimis encroachment of Defendants' chain-link fence. Plaintiff does not argue that her benefit stemming from the removal of the chain-link fence would outweigh Defendants' burden associated with the removal of the structure, nor has Plaintiff brought evidence which shows the Subject Property lost value as a result of the encroachment.

[*12]CONCLUSION: "The ultimate element in adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse ownership through the statutory period." Walling, 7 NY3d at 232, 851 NE2d at 1169. Plaintiff and her predecessor in interest owned the Subject Property for approximately forty-two years. The record contains no evidence they took any action to assert a claim over the disputed property. Instead, Plaintiff argues that Defendants cannot meet their burden to satisfy the adverse possession elements by the clear and convincing weight of the evidence. An analysis of the record shows otherwise. Inasmuch as Plaintiff and Defendants' evidence conflict, the issues raised are immaterial to this decision.

All elements of adverse possession have been established by clear and convincing evidence, accordingly, Defendants' cross- motion for summary judgment is granted. Settle Judgment.

Dated: September ___, 2009_____________________________________

Hon. Edgar G Walker, J.S.C. Footnotes

Footnote 1:

Pet. Ex. "B."

Footnote 2:

Serafin EBT 10, Jan. 14, 2009.

Footnote 3:

Id.

Footnote 4:

Id. at 16.

Footnote 5:

Id. at 16-18.

Footnote 6:

Q:When you went to the property, what did you do when you went to this property?

A:I spoke with my tenants.

Q:Did you ever walk around the property to go on East 232nd Street to the back of the property?

A:No, I didn't.

Q:So when you spoke with your tenants, you always primarily stayed on White Plains Road?

A:Right.

Q:Did there come a time that you deviated in that you went around to any other area besides the front of the property?

A:No, I didn't.

.

Q:Did you ever recall in your visits to the property ever seeing this concrete platform?

A:No, sir.

.

Q: .Did you ever have any conversations with your husband regarding this concrete platform in the rear of the property?

A:No, sir.

Q:Did you ever have any conversations with your husband regarding this staircase I mentioned, this northerly staircase.

A:No.

Footnote 7:

Dickerson EBT 9, Jan. 14, 2009; Dorothy Dickerson Aff. ¶ 4; Anna Dickerson Aff. ¶ 4; Merced Dickerson Aff. ¶ 4.

Footnote 8:

Affirm. Ex. "7."

Footnote 9:

Dorothy Dickerson Aff. ¶ 5; Anna Dickerson Aff. ¶ 5; Merced Dickerson Aff. ¶ 5; see Dickerson EBT 8-12.

Footnote 10:

Q:How long have you lived at [the adjacent property]?

A:For 38 years.

.

Q:Did there come a time when you added a second stairway to the building that you lived in at that address?

A:Added?

Q:Yes.

A:We improved, but we didn't add. Everything was there already.

Footnote 11:

Dorothy Dickerson Aff. ¶ 5; Anna Dickerson Aff. ¶ 5; Merced Dickerson Aff. ¶ 5; Affirm. Ex. "5."

Footnote 12:

Id.

Footnote 13:

Pet. Ex. "A"

Footnote 14:

Pet. ¶ 5 & Ex. "C"

Footnote 15:

Nicoletti Aff. in Supp. of Pet. ¶ 4.

Footnote 16:

Id. at ¶¶ 8-9; Affirm. Ex. "7."

Footnote 17:

Pet. ¶¶ 9-13.

Footnote 18:

Affirm. Ex. "7"; Pet. Ex. "A"-"C."

Footnote 19:

Effective Jul. 7, 2008€"subsequent to the date upon which Plaintiff brought this action€"N.Y. R.P.A.P.L. § 521, "Adverse possession not under written instrument or judgment," was amended and retitled so that it refers to a "claim of right" rather than a "claim of title." "Claim of right" is defined as "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be." NY R.P.A.P.L. § 501 (McKinney 2009).

Footnote 20:

Dorothy Dickerson Aff. ¶ 5; Anna Dickerson Aff. ¶| 5; Merced Dickerson Aff. ¶ 5; see Dickerson EBT 12-14.

Footnote 21:

Q:Okay. Marked Plaintiff's A for identification, look first at the top photo. Can you identify what is depicted in the top photo?

A:My apartment.

Q:When you say your apartment, you're talking about the ground floor apartment?

A:Yes.

Q:There's a stairway on the left-hand side of this photograph?

A:The left?

Q:Yes, the left-hand side of the photograph, where does this stairway go?

A:It leads towards my apartment and the basement.

Q:Does it go out 232nd Street?

A:No.

Q:There appears to be a second stairway. What is that stairway?

A:Show me what you are talking about.

Q:Right here (indicating.

A:Oh, that's always been there. When that started falling apart, my father fixed it up, but it has always been there.

Q:So from the time you moved in 38 years ago, there was a stairway that existed?

A:Leading to my apartment, yes.

Q:Was there also the stairway that's on the left-hand side of this building that leads down to the area?

A:These steps here (indicating)? Q:Yes.

A:Yes, they were always there.

Footnote 22:

Dickerson EBT 21-24; Serafin EBT 18-20; Affirm. Ex. "5."

Footnote 23:

See Serafin EBT 16-17.

Footnote 24:

Dorothy Dickerson Aff. ¶ 5; Anna Dickerson Aff. ¶ 5; Merced Dickerson Aff. ¶ 5.

Footnote 25:

Id.

Footnote 26: Q:I'm showing you what has been marked as Plaintiff's Exhibit F which appears to be an invoice with the word Accurate Fence Corporation on top indicating that it had been paid May 22, 1986.

Q:Do you have€"by looking at this document, can you tell what work that document refers to?

A:No, I cannot.

Q:I'm going to show you two money orders which appear to be dated 1986. Do you know what those money orders are for: can you tell? One is to Percy Dickerson, the other is to cash.

A:No.

Q:Are you the one who provided your attorney with this document?

A:Yes.

Q:What does this document refer to?

A:It refers to the wall and to the steps.

Q:That's what you were referring to previously that it had started to crumble and your father had made some repairs?

A:Yes.

Q:And to the best of your knowledge and recollection, what are the repairs that were made pursuant to this purchase order?

A:He did something to the block wall, the big fat wall out there because the concrete was coming loose like it's starting to do now. And the steps here.

Q:Are you referring to the concrete steps that go up?

A:Yes, and he did something to the walkway because it was crumbling.

Q:When you say the walkway are you referring to the area from the bottom of your steps that come down on the side?

A:Yes, the side of the house.

Q:Now, when this work was done and he replaced the crumbling walkway, did he change the walkway in any way in terms of its size or dimension?

A:Not that I'm aware of.

Footnote 27:

Def.'s Cross-mot. for Summ. J. Ex. D.

Footnote 28:

Serafin EBT 10.

Footnote 29:

Affirm. Ex. "7."

Footnote 30:

Affirm. Ex. "5"; Def.'s Cross-mot. for Summ. J. Ex. A.

Footnote 31:

Dorothy Dickerson Aff. ¶ 5; Anna Dickerson Aff. ¶ 5; Merced Dickerson Aff. ¶ 5.

Footnote 32:

Affirm. Ex. "5"; Def.'s Cross-mot. for Summ. J. Ex. A.

Footnote 33:

Effective July 7, 2008€"subsequent to the date upon which Plaintiff brought this action€"the New York statute codifying the essentials of adverse possession not under written instrument was amended. Previously, the statute required adversely possessed property to be "usually cultivated or improved" or "protected by a substantial enclosure"; the revised statute alters the usual cultivation requirement to call for "acts sufficiently open to put a reasonable owner on notice." NY R.P.A.P.L. § 522. As noted in the practice commentaries, this statutory change appears to be a codification of the case law which interpreted the cultivation requirement as a conduct by the adverse possessor sufficiently open to put a reasonably diligent owner on notice and would not therefore impact the outcome herein. De Winter and Loeb, Practice Commentaries, McKinney's Cons Laws of NY, Book 49½, RPAPL § 522; Walling v. Przybylo, 7 NY3d 288.

Footnote 34:

Dorothy Dickerson Aff. ¶ 5; Anna Dickerson Aff. ¶ 5; Merced Dickerson Aff. ¶ 5.

Footnote 35:

Id.

Footnote 36:

Affirm. Ex. "5."

Footnote 37:

Pet'r's Resp. to Counter-cl. ¶ 21.

Footnote 38:

Affirm. ¶¶ 22-24.

Footnote 39:

Dickerson EBT 26; Affirm. Ex. "5."

Footnote 40:

Dorothy Dickerson Aff. ¶ 6; Anna Dickerson Aff. ¶ 6; Merced Dickerson Aff. ¶ 6.

Footnote 41:

Def.'s Cross-mot. for Summ. J. Ex. A

Footnote 42:

Def.'s Cross-mot. for Summ. J. Ex. B.

Footnote 43:

Nicoletti Aff. in Supp. of Pet. ¶ 8.

Footnote 44:

Affirm. Ex. "5."

Footnote 45:

Def.'s Cross-mot. for Summ. J. Ex. A.