Heumann v Old Forge Props., Inc.

Heumann v Old Forge Props., Inc. 2006 NY Slip Op 08370 [34 AD3d 1204] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Sylvia K. Heumann, Appellant, v Old Forge Properties, Inc., et al., Respondents.

—[*1]

Appeal from a judgment (denominated order) of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered January 9, 2006. The judgment, inter alia, declared defendant Old Forge Properties, Inc. the owner of a disputed parcel of real property.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from a judgment of Supreme Court that, inter alia, declared defendant Old Forge Properties, Inc. the owner of a disputed parcel of real property. The court properly found that defendants met the common-law and statutory requirements of adverse possession (see RPAPL 521, 522). Defendants established by clear and convincing evidence that the character of their possession was "hostile and under a claim of right, actual, open and notorious, exclusive and continuous . . . for the statutory period of 10 years" (Snyder v Fabrizio, 2 AD3d 1464, 1465 [2003], lv denied 2 NY3d 703 [2004] [internal quotation marks omitted]). Because there was no written instrument describing the boundaries of the disputed property, defendants were required to establish cultivation or improvement of the property, or that it has been protected by a substantial inclosure (see RPAPL 522; Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]). Defendants established cultivation and improvement of the property by showing that, on the disputed property, they expanded a sandpit, improved a snowmobile trail for use as a road and constructed a shop and garage, a septic tank, and a well pump. Present—Gorski, J.P., Martoche, Smith and Pine, JJ.