Bratone v Conforti-Brown

[*1] Bratone v Conforti-Brown 2009 NY Slip Op 52102(U) [25 Misc 3d 1215(A)] Decided on September 8, 2009 Supreme Court, Queens County Lane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2009
Supreme Court, Queens County

Arthur Bratone, RONALD BRATONE and STEVEN BRATONE, individually and derivatively as shareholders on behalf of VERNON-SUTTON, INC., Plaintiffs,

against

Linda Conforti-Brown and MARTHA CONFORTI, Defendants.



27200/07



For Plaintiffs:

Richman & Levine, P.C.

666 Old Country Road

Garden City, New York

by: Keith Richman, Esq.

For Defendants:

Schnaufer & Metis

280 North Central Avenue, Ste. 200

Hartsdale, New York 10530

by: John Schnaufer, Esq.

Howard G. Lane, J.

The motion by plaintiffs, Arthur Bratone, Ronald Bratone and Steven Bratone, individually and derivatively as shareholders on behalf of Vernon-Sutton, Inc. ("VSI") for an order striking the answer of defendants, Linda Conforti-Brown and Martha Conforti and directing the entry of summary judgment in favor of plaintiffs and against defendants on the first and second causes [*2]of action in plaintiffs' Verified Complaint, upon the grounds that defendants have no valid defense to plaintiffs' causes of action that seeks a finding of VSI's ownership of the subject real property by adverse possession, is hereby granted.

Defendants' cross motion for an order pursuant to CPLR 3212 for partial summary judgment dismissing the first and second causes of action of the complaint herein on the ground that plaintiffs cannot prove it holds title to the premises described hereby by adverse possession, is hereby denied.

This action pertains to various claims regarding the real property, together with the buildings and improvements thereon, located at 30-55 Vernon Boulevard, Long Island City, New York, Block 505, Lot 14, 24, 25 and 26, in the State of New York, County of Queens ("the Premises"). VSI is a corporation that was formed on or about September 9, 1960 and the plaintiffs named in the caption are shareholders who collectively own 50% of the shares of the stock. VSI is a single asset entity, whose only business is the ownership and management of the Premises. VSI is the title owner of a certain part of the Premises. Approximately 6,000 square feet of the building on the Premises and the parking area are not included in the land described in the metes and bounds description on VSI's deed to the Premises. The parts of the Premises not covered by the subject deed shall be referred to as the "Disputed Parcel". VSI maintains that it has acquired ownership of the Disputed Parcel (and thus owns the entire Premises) by adverse possession. The first cause of action in the complaint is that the plaintiffs ask the Court to declare the rights of the parties and to find that VSI is the sole and exclusive owner of the Premises. The second cause of action in the Complaint requests that the Court "quiet title" to the Premises.

The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986].) Once the proponent has met its burden, the opponent must now produce competent evidence in admissible form to establish the existence of a triable issue of fact (see, Zuckerman v. City of New York, 49 NY2d 557 [1980]). It is well settled that on a motion for summary judgment, the court's function is issue finding, not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Pizzi by Pizzi v. Bradlee's Div. of Stop & Shop, Inc., 172 AD2d 504, 505 [2d Dept 1991]). However, the [*3]alleged factual issues must be genuine and not feigned (Gervasio v. DiNapoli, 134 AD2d 235 [2d Dept 1987]).

To establish ownership by adverse possession, the movant must demonstrate that the possession is hostile and under a claim of right; that it is actual, open and notorious, continuous and exclusive for the statutory period of ten years (Ray v. Beacon Hudson Mountain Corp., 88 NY2d 154 [1996]; Oak Ponds, LLC v. Willumsen, 295 AD2d 587 [2d Dept 2002]). Further, if such claim is not based upon a written instrument, the movant must demonstrate that it cultivated and improved the land or protected it by a substantial enclosure (see, RPAPL 522). Since the acquisition of title to land by adverse possession is not favored under the law, the movant must demonstrate its entitlement by clear and convincing evidence (Ray, supra.)

Plaintiffs move for summary judgment, arguing that there are no issues of fact in dispute. Plaintiffs present an affidavit of merit from Arthur Bratone, one of the plaintiffs as well as the President and a shareholder of the corporate plaintiff VSI; an affidavit of merit from Ronald Bratone, one of the plaintiffs as well as a shareholder of the corporate plaintiff VSI; an affidavit of merit from Steven Bratone, one of the plaintiffs as well as the Vice President and a shareholder of the corporate plaintiff VSI; a copy of the deed whereby Clement Bratone and Ray Conforti acquired the Premises as Joint tenants; a deed dated September 7, 1971, by which deed Ray Conforti transferred only part of lot 14 of the Premises to VSI; a survey dated May 7, 2007; a copy of a lease dated August 22, 1992 between Vernon-Sutton, Inc. as Owner and Rayco Manufacturing Co. as Tenant; a Financial Report for the time period as of December 31, 1983; a copy of the 2005 US Income Tax return for VSI; the pleadings; the examination before trial transcript of Joseph Lempel (the accountant for VSI); excerpts of the examination before trial transcript testimony of Martha Conforti; a portion of an Amended Estate tax return entitled "Reason for filing a Supplemental Information Form 706" and a memorandum of law in support of their motion.

Plaintiffs established a prima facie case that the possession is actual, open and notorious, continuous and exclusive for the statutory period of ten years. Plaintiffs established that for at least the last 37 years, inter alia: VSI paid for and erected an approximately 6,000 square foot addition to the commercial building that already existed on the Premises, which addition is on the Disputed Parcel, and has always been [*4]utilized, maintained and repaired exclusively by VSI; VSI entered into leases for the entire Premises, which include leases identifying VSI as Owner, and granting rights to tenants to utilize the Disputed Parcel; VSI had financial statements prepared, and submitted same to various lending institutions, which all indicated VSI's ownership of the entire Premises; VSI continuously paid real estate taxes for the entire Premises; VSI filed tax returns claiming ownership of the entire Premises; VSI managed the entire Premises; VSI maintained and repaired the entire Premises; VSI paid all expenses for the entire Premises; VSI paid Arthur Bratone to oversee the management and day-to-day operations of the entire Premises; VSI paid distributions to all of its shareholders from the net proceeds of the rents collected from the entire Premises—which distributions were always accepted by all of the shareholders of VSI without any objection; VSI issued K-1 forms to all of its shareholders, reflecting the income and expenses from the entire Premises; and VSI's shareholders discussed and agreed to market and sell the entire premises. Additionally, plaintiffs established that the Disputed Parcel has always been entirely enclosed by a concrete wall and/or chain link fence; and that VSI has exclusively and continuously possessed the Disputed Parcel during the last at least thirty-seven years.

Plaintiffs also established a prima facie case that the possession is hostile and under a claim of right. "Possession is hostile when it constitutes an actual invasion of or infringement upon the owner's rights' . . .Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity" (United Pickle Products Corp. v. Prayer Temple Community Church, 43 AD3d 307 [1st Dept 2007][internal citations omitted]). Accordingly, plaintiffs have proven their entitlement to ownership of the Disputed Parcel by adverse possession by establishing the other four elements of adverse possession and by inference, the element of hostility. In addition, plaintiffs demonstrated that its possession is hostile and under a claim of right by submitting evidence showing that VSI declared itself to the world, including the title owner, as the owner of the Disputed Parcel by erecting a building on the Disputed Parcel, maintaining the Disputed Parcel, leasing out the Disputed Parcel, collecting monies from said leases and distributing same to shareholders, and by paying all expenses associated with the Disputed Parcel. Therefore, the [*5]possession is hostile, thus the burden shifts to the defendants to rebut same.

Defendants oppose and cross-move arguing that plaintiffs have failed to establish the element of hostility. In opposition, and in support of its cross motion, defendants submit, inter alia, an affidavit of defendant, Martha Conforti; the pleadings; a copy of plaintiffs' certificate of incorporation; stock certificates; a copy of the examination before trial transcript of plaintiff, Arthur Bratone; a survey of the Premises; the certification title and deed indicating that the Premises were owned by joint tenants; a copy of the title policy; a survey of the Premises dated April 27, 1961; a copy of the Lease; the examination before trial transcript testimony of Mr. Lempel; a survey of Stephen J. Reid, Inc. dated June 28, 1963; a copy of the certificate of occupancy; a copy of the mortgage made to Hamburg Savings Bank; a copy of the death certificate of Clement Bratone; a copy of the deed dated September 7, 1971; a copy of the mortgage; a copy of Arthur Bratone's certification; a copy of the 1973 certificate of occupancy; a copy of the certificate of occupancy dated

December 15, 1982; a copy of the appraisal; tax bills composing the tax lots 24, 25, and 26; a copy of an attorney's search for any open judgments, mortgages, or liens in 1991; a redacted copy of the supplemental federal and New York State amended estate tax returns for the estate of Lucille Conforti; a short form order of Judge Dorsa, the Last Will of Ray Conforti; the Last Will of Lucille Conforti; and Letters Testamentary for the Estates of Ray Conforti and Lucille Conforti.

The Court notes that defendants have failed to dispute that plaintiffs satisfied the four elements of adverse possession other than hostility. "Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted." (Kuehne & Nagel, Inc. v. Baider, 36 NY2d 539 [NY 1975]; see also, Tortorello v. Carlin, 260 AD2d 201 [1st Dept 1999]). Accordingly, plaintiffs establish a prima facie case that there are no triable issues of fact.

In addition, although defendants assert that VSI's occupancy of the Disputed Parcel was not hostile because VSI's possession of the Disputed Parcel was with the title Owner's (Ray Conforti's) permission, defendants submit no evidence that VSI had permission to occupy the Disputed Parcel. Defendants submit no evidence that permission to possess the Disputed Parcel was requested by VSI or granted by the title owner. [N]othing short [*6]of [s]eeking permission for use from the record owner negates hostility'" (United Pickle Products Corp., supra). Remarkedly, there is no evidence that Ray Conforti, or the heirs to the Disputed Parcel, including the defendants herein, even advanced any claim to be the record or rightful owners of the disputed property for the nearly 34-year period of 1972 to 2005. As such, there can be no triable issue of fact as to hostility. Accordingly, defendants' cross motion is denied, and plaintiffs' motion is granted.

Settle order.

.........................

Howard G. Lane, J.S.C.