Blanchard v Blanchard

[*1] Blanchard v Blanchard 2004 NY Slip Op 51079(U) Decided on September 8, 2004 Supreme Court, Bronx County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2004
Supreme Court, Bronx County

ALMA BLANCHARD, Plaintiff,

against

HARDY BLANCHARD, Defendant.



18782/2002

Dianne T. Renwick, J.

In this action, plaintiff Alma Blanchard seeks a partition and sale of the former matrimonial residence, which in 1958 she purchased concomitantly with her husband (now former spouse) defendant Hardy Blanchard. Defendant counterclaims to be declared the sole owner of the property by adverse possession based upon defendant's exclusive possession of the property since his divorce from plaintiff in 1972. Plaintiff now moves for summary judgment directing partition and sale of the subject property. The dispositive issue on this motion is whether adverse possession creates a bar to plaintiff's claim of title.

Factual Background

In 1946, plaintiff Alma Blanchard married defendant Hardy Blanchard. In 1958, they purchased a three-family house at 1756 Seward Avenue, Bronx, New York, by procuring a 15-year mortgage to cover the purchase price of $15,000. Alma and Hardy Blanchard were listed as husband and wife in the deed. In 1972, Alma and Hardy Blanchard divorced. The divorce judgment contained no provision for the disposition of the property, and it awarded plaintiff formal custody of the children. Defendant, however, retained actual custody of the children with plaintiff's acquiescence. Likewise, since the divorce in 1972, defendant continuously and uninterruptedly maintained exclusive possession of the subject premises.

On April 29, 2002, counsel for defendant Hardy Blanchard sent a letter to plaintiff Alma [*2]Blanchard, advising her that defendant had found an interested purchaser for the premises. In counsel's letter, defendant offers to pay plaintiff $15,000 from the closing proceeds "to resolve [her] interest in the property." Reportedly, the property is valued at or about $345,000. Counsel for defendant advised plaintiff that if she did not accept the offer, his client intended to start a proceeding to "remove [plaintiff's] name from the deed." Plaintiff ignored defendant's overtures. Hence, 30 years after defendant assumed exclusive possession of the property, plaintiff commenced this action seeking a partition and sale of the subject property, pursuant to Article 9 of the Real Property Action and Proceeding Law. Defendant counterclaims to be declared the sole owner under the doctrine of adverse possession based upon his exclusive possession of the property since the divorce in 1972. Plaintiff now moves for summary judgment. Besides opposing plaintiff's motion, defendant requests that the Court search the record and grant him summary judgment on his counterclaim for adverse possession.

Discussion

When Alma and Hardy Blanchard purchased the subject property in 1958, they were listed in the deed as husband and wife and thus owned the property as tenants-by-the-entirety. See Domestic Relations Law §236; Coffey v. Coffey, 119 A.D.2d 620 (2nd Dept. 1986). However, when they were divorced in 1,972, their ownership of the property was transformed by operation of law to a tenancy-in-common. See Perez v. Perez, 228 A.D.2d 161 (1st Dept. 1996); Eller v. Eller, 168 A.D.2d 414 (2nd Dept. 1990). See also, 13 Warren's Weed, New York Real Property, Tenancy-In-Common, §208(1) (4th Ed.). No judicial distribution of the property ensued after the divorce. Under the circumstances, this Court must determine whether adverse possession effects a bar to plaintiff's claim of title to the subject property as a tenant-in-common with her former husband.

In New York, Section 541 of the Real Property Action and Proceeding Law ("RPAPL") governs adverse possession between tenants-in-common. RPAPL §541 provides as follows: Where the relation of tenants in common has existed between any persons, the occupancy of one tenant . . . is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises . . . has claimed to hold adversely to the other. But this presumption shall cease after the expiration of ten years of continuous, exclusive occupancy by such tenant . . . and such occupying tenant may then commence to hold adversely to his co-tenant.

In Myers v. Bartholomew, 91 N.Y.2d 630 (1998), the Court of Appeals

held that this section provides a measure of extra protection to tenants-in-common from adverse possession claims asserted by their co-tenants. Specifically, the Court interpreted RPAPL §541 to provide that a non-ousting tenant-in-common must exclusively occupy the property for a 10-year period prior to commencement of the running of the 10-year Statute of Limitations codified in CPLR §212(a). The Court rejected the view that the Statute of Limitations could run concurrently with the presumption provided by RPAPL §541, and that title could result after only ten years of possession. Id. at 638. Thus, in practical terms, a co-tenant must "adversely possess" for 20 years before acquiring adverse possession against a co-tenant who quits, as opposed to one who is ousted. Id. [*3]

In this case, defendant makes no claim that he ever ousted plaintiff from the property in question. Generally, ouster requires a written or oral communication of the intent to possess adversely against his or her fellow co-tenant. See 4 George W. Thompson, Thompson on Real Property, 1811 (1979). Instead, defendant claims exclusive and continuous possession of the subject property for 30 years. Such possession beyond the statutory period of 20 years, however, does not ipso facto establish a claim of adverse possession. Defendant must establish a de facto "adverse" possession during the prescribed period. Brand v. Prince, 35 N.Y.2d 634 (1974); Katona v. Low, 226 A.D.2d 433 (2nd Dept. 1996).

There are five essential elements necessary to constitute an effective adverse possession: First, the possession must be hostile and under claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and fifth, it must be continuous; if any of these constituents is wanting, the possession will not effect a bar of the legal title. Belotti v. Bickhardt, 228 N.Y. 296 (1920), citing Doherty v. Matsell, 119 N.Y. 646 (1890). See also, Brand v. Prince, 35 N.Y.2d 634 (1974). The quantum of proof necessary to establish a claim of title for adverse possession is clear and convincing evidence. See Russoff v. Engel, 89 A.D.2d 587 (2nd Dept. 1982).

In this case, there is no question that defendant's possession has been actual, open and notorious, exclusive and continuous during the prescriptive time period. The question is whether it has been hostile. The general rule is that "[w]hen possession is permissive in its inception, adverse possession will not commence until there is a distinct assertion of a right hostile to the owner and brought home to him." Perez v. Perez, 228 A.D.2d 161, 163 (1st Dept. 1996), quoting Shandaken Reform Church of Mt. Tremper v. Leone, 87 A.D.2d 950, 950-51 (3rd Dept. 1982). Permission is, however, overcome by a presumption of hostility when established by clear and convincing evidence of the actual, open, notorious and exclusive possession of the disputed property for the statutory period. See e.g., Greenberg v. Sutter, 257 A.D.2d 646 (2nd Dept. 1999); Katona v. Low, 226 A.D.2d 433 (2nd Dept. 1996).

Plaintiff Alma Blanchard attempts to rebut the "presumption of hostility" by submitting evidence of overtures made in 2,002 by counsel for defendant to purchase, for $15,000, any interest plaintiff may have had in the subject property. There should be no doubt that such statement is admissible against defendant if relevant to a material issue in the case. Since settlement negotiations are unquestionably within counsel's authority, an admission made in a letter sent in an attempt to settle or compromise a matter on behalf of his or her client has been held admissible. See e.g., DiCamillo v. City of New York, 245 A.D.2d 332 (2nd Dept. 1997); Bellino v. Bellino Constr. Co., 75 A.D.2d 630 (2nd Dept. 1980); see also, Richardson, Evidence (Prince,, 10th Ed, §§253, 214).

Nor can there be any dispute that the offer to settle or compromise any claim plaintiff may have had against the subject property is relevant to the issue of hostility. Evidence of such conduct or words on the part of the possessor after the prescriptive period has run, although not dispositive on the claim of adverse possession, has been found probative of the character of his or her possession. See Van Valkernburgh v. Lutz, 304 N.Y. 95 (1952). If defendant was negotiating to purchase plaintiff's putative interests, then his possession arguably would not have been "hostile" because it would have been under an acknowledgment that plaintiff had an interest in the subject property. Cf. Oistacher v. Rosenblatt, 220 A.D.2d 493 (2nd Dept. 1998) [*4](Acknowledgment of title in another can be inferred from his or her knowledge that title lies with another);Manhattan School of Music v. Solow, 175 A.D.2d 106 (2nd Dept. 1991) (Acknowledgment of title in another can be inferred from the possessor's conduct, such as, his or her offer to purchase).

To be sure, the evidence of the offer to settle or compromise any claim plaintiff may have had against the subject property is hardly overwhelming. It is, however, enough to raise an issue of fact and forestall summary judgment. As repeatedly held, since the remedy of summary judgment is a drastic one, it should not be granted where there is any doubt as to the existence of a triable issue; or where the issue is even arguable, since it serves to deprive a party of her day in court. Gibson v. American Export Isbrandtsen Lines, 125 A.D.2d 65, 74 (1st Dept. 1987). Cf. Fijal v. American Export Isbrandtsen Lines, Inc., 127 A.D.2d 167 (1st Dept. 1987).

Conclusion

In short, defendant Harry Blanchard has clearly established a prima facie case for summary judgment on his counterclaim for adverse possession based upon his actual, open and notorious, exclusive and continuous possession of the subject property for 30 years. Plaintiff, however, has raised a triable issue of fact based upon her former husband's offer to buy her interest in the subject property. Thus, the parties' respective requests for summary judgment must be denied since issue of facts remain as to whether plaintiff's claim for partition is barred by defendant's defense of adverse possession.

This constitutes the Decision and Order of the Court.

Dated: September 8, 2004___________________________

Bronx, New York Hon. Dianne T. Renwick, J.S.C.