Ventura v DNR Constr. LLC

[*1] Ventura v DNR Constr. LLC 2006 NY Slip Op 51912(U) [13 Misc 3d 1219(A)] Decided on September 28, 2006 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2006
Supreme Court, Richmond County

Anthony M. Ventura, Petitioner(s)/, Plaintiff(s) ER

against

DNR Construction LLC and SI BANK & TRUST CORPORATION, Respondent(s), Defendant(s)



102368/2006



MORSE & MORSE

ATT: ANDREA MORSE, ESQ.

358 ST. MARKS PLACE

STATEN ISLAND, NY 10301

GAINES & FISHLER, LLP

ATT: MICHAEL HEITMANN, ESQ.

2555 RICHMOND AVENUE

STATEN ISLAND, NY 10314

Thomas P. Aliotta, J.

Plaintiff, in connection with an action to procure title to land by adverse possession, moved by Order to Show Cause for a Preliminary Injunction enjoining the defendant, DNR Construction LLC (hereinafter "DNR") or its agents, or persons acting on its behalf or at its direction from removing, damaging or destroying the four (4) foot board fence situated in Block 6212, Lot 115 shown on the survey dated June 13, 2006 made by Rajakaruna & Ettinger, PC and further enjoining said defendant from any action with respect to the property located on said survey between the four (4) foot board fence and the dividing line of Tax Lot 115 and Tax Lot 118, as shown on said survey.

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Pending a determination of the motion, the Court enjoined defendant DNR, its agents or any person(s) acting on its behalf from action which it may take to destroy, damage or remove the four (4) foot board fence shown on the survey above and from any actions with respect to the property located and shown on such survey between the four (4) foot board fence and the dividing line of Tax Lot 115 and Lot 118 as shown on said survey. Defendant DNR submitted written opposition and a hearing was held. After taking testimony and other evidence, the Court finds and decides as follows:

Plaintiff, owner of Tax Lot 118 of Block 6212 in Richmond County since 1973 constructed a home thereon in 1975. As required by his Certificate of Occupancy, plaintiff planted grass, bushes and trees west of the house. In 1988 plaintiff's next door neighbor "Barbara", a predecessor in title to defendant DNR, erected a board fence "with respect to" plaintiff's cultivation of the land between their homes. Plaintiff maintains that he has continued to cultivate the area on his side of the fence since that time. Plaintiff alleges that defendant DNR has filed building plans which indicate that it intends to construct a retaining wall on plaintiff's side of the board fence which will cut him off from

land which he has cultivated and adversely possessed. The disputed strip of land has a maximum width of 7.44 feet and a length of approximately 112 feet.

Defendant DNR contends that nothing has been planted upon the land in dispute and that plaintiff's claim to have adversely possessed the land fails in numerous respects. In the alternative, it urges that a substantial undertaking must be posted by plaintiff in the event that the injunction is continued in that great prejudice will thereby result.

On a motion for a Preliminary Injunction, the applicant must establish three things, namely: (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that the equities are balanced in his favor (Aetna Insurance Co. v Capasso, 75NY2d 860). Adverse possession must be proven by clear and convincing evidence

(Ray v Beacon Hudson Mtn. Corp., 88NY2d154,159). Moreover, to establish a claim of adverse possession, the following five elements must be proved: Possession must be (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period (Belotti v Bickhardt, 228NY296).

Upon consideration of the evidence on each of the foregoing points, the Court hereby grants plaintiff's application, conditioned upon his posting of an Undertaking in the sum of $300,000.00, pursuant to CPLR 6312(b), within ten (10) days of the date of this Order. For purposes of this motion the Court finds, by clear and convincing evidence, that plaintiff planted and cut grass upon [*2]

the disputed strip of land, at least since 1988 and that same established cultivation consistent with the nature of the residential property so as to indicate exclusive ownership. Plaintiff's use of the land has been open, notorious and continuous for the full ten-year period, thereby giving rise to a presumption of hostility (Belotti v Bickhardt, supra). A mutual mistake on the part of the plaintiff and DNR's predecessor in title concerning the location of the borderline between the parties will not negate a finding of hostile possession (Katona v Low, 226AD2d433,34).

The Court finds that each of the elements required for issuance of a Preliminary Injunction has been satisfied: that plaintiff established a likelihood of success on the merits and that irreparable injury, to wit: deprivation of all incidents of ownership of the disputed land will result if defendant is permitted to construct the proposed retaining wall. Likewise, that a balancing of the equities favors plaintiff, in light of the consequences of permitting the defendant to proceed with erection of the wall prior to a resolution of this dispute.

The foregoing constitutes the Decision and Order of the Court.

Settle Order on Notice.

Law Clerk to notify.

DATED: SEPTEMBER 28, 2006/s/

THOMAS P. ALIOTTA

J.S.C.

ASN by KD/PT on 9/28/06

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify both sides of this Decision/Order.

Dated:

THOMAS P. ALIOTTA

J.S.C.

ASN byon