Trimboli v Irwin

[*1] Trimboli v Irwin 2006 NY Slip Op 50277(U) [11 Misc 3d 1058(A)] Decided on January 31, 2006 Supreme Court, Nassau County Lally, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2006
Supreme Court, Nassau County

Patricia Trimboli, Plaintiff,

against

Jill Irwin, Defendant.



8068/04

Ute Wolff Lally, J.

Upon the foregoing papers, it is ordered that this motion by

plaintiff for an order pursuant to CPLR 3212 granting summary judgment awarding her title to a portion of the real property as described herein under the doctrine of adverse possession is denied.

Plaintiff and defendant are owners of adjoining properties. Plaintiff commenced this action alleging adverse possession title to a pie-shaped strip of land consisting of approximately 200 square feet located along the side and to the rear of premises known as 41 Seventh Street, Sea Cliff, New York which she and her husband Eugene Trimboli purchased in 1993. Thereafter, by deed dated July 3, 1995, the property was conveyed to plaintiff alone by deed from Eugene Trimboli and Patricia Trimboli.

Plaintiff claims title to the disputed strip of land (consisting primarily of a lawn and garden area according to plaintiff) on the ground that, since 1993 when she took possession of the land, she has cultivated and improved and/or protected it by a substantial inclosure as required for adverse possession under RPAPL §522. She states that the disputed strip [*2]of land was part of the property she believed she was buying and her use of same has been consistent with that belief. Defendant counters that plaintiff knew defendant owned the disputed parcel of property before, or, at the time, she purchased the adjacent property as evidenced by deposition testimony stating that the previous owner informed her that the shed in the rear of plaintiff's property might be on defendant's property but that it had been so for many years and had never been a problem. Moreover, defendant contends that the current fence which encloses the disputed property was not erected until after February 28, 2003 and that the only fencing present, prior to said date, as evidenced by the survey of February 24, 1995, was a single piece of lattice and two sections of old split rail fence. Defendant also maintains that the disputed parcel was neither cultivated nor improved by plaintiff.

It is well settled that a party seeking to obtain title by adverse possession must establish by clear and convincing evidence the common law requirements of hostile possession, under a claim of right which was actual, open and notorious, exclusive and continuous for the statutory period (Seisser v Eglin, 7 AD3d 505, 506). Additionally, on a claim not based upon a written instrument, the plaintiff must produce evidence that the premises were either "usually cultivated or improved," or "protected by a substantial inclosure" (RPAPL 522[1], [2]; Gore v Cambareri, 303 AD2d 551, 552). The type of cultivation or improvement sufficient to satisfy the statute will vary with the character, condition, location and potential use of the property (Birnbaum v Brody, 156 AD2d). Where use is open, notorious and continuous for the full statutory period a presumption of hostility arises and the burden shifts to the record owner to produce evidence rebutting the presumption of adversity (Porter v Marx, 179 AD2d 962, 963 [citations and internal quotation marks omitted]). Hostility in the adverse possession context, may be found even though the possession occurred inadvertently or by mistake (Greenberg v Sutter, 257 AD2d 646). Hostile possession does not require a showing of enmity or specific acts of hostility. All that is required is a showing that the possession constitutes an actual invasion or infringement upon the owner's rights (Gore v Cambareri, supra, at p. 553). When use has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter assumes the attitude of hostility to any right in the real owner. Where the first possession is by permission, it is presumed to continue so until the contrary appears (Longshore v Hoel Pond Landing Inc., 284 AD2d 815, 816, lv to appeal denied 97 NY2d [*3]603).

A party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering sufficient evidence to demonstrate the absence of any material issues of fact (Ayotte v Gervasio, 81 NY2d 1062, 1063). In deciding such a motion, the court must view the evidence in the light most favorable to the non-moving party giving that party the benefit of all favorable inferences which can be drawn from the evidence (Louniakov v M.R.O.D. Realty Corp., 282 AD2d 657). Summary judgment will be denied if there is any doubt as to the existence of a triable issue of fact (Freese v Schwartz, 203 AD2d 513, 514).

Given the de minimis delay of two days in filing the motion for summary judgment, and the lack of prejudice to defendants, plaintiff's motion may properly be entertained, in the discretion of the court (Rosa v Averso, 305 AD2d 483, 383; leave to appeal denied 100 NY2d 514), predicated on plaintiff's counsel's misreading of the Certification Order. The motion for summary judgment was served on November 7, 2005 in accordance with the court order deadline but was not filed until two days later on November 9, 2005.

Applying the relevant principles to the facts at hand renders summary judgment in plaintiff's favor inappropriate. Whether satisfactory proof of the elements comprising adverse possession does, in fact, exist and whether the improvements allegedly made by plaintiff to the property are sufficient to satisfy the requirement of RPAPL § 522, present triable factual issues precluding summary judgment.

Dated: January 31, 2006 _______________________________

J.S.C.