Perfito v Einhorn

[*1] Perfito v Einhorn 2008 NY Slip Op 50413(U) [18 Misc 3d 1142(A)] Decided on March 5, 2008 Supreme Court, Westchester County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 5, 2008
Supreme Court, Westchester County

Richard Perfito, Lorraine Perfito and Peter Perfito, Plaintiffs,

against

Adam Einhorn and Andrea Einhorn, Defendants.



15704/06



Gaines, Gruner, Ponzini & Novick, LLP

Attys. For Pltfs.

One North Broadway

White Plains, New York 10601

Sweeney, Cohn, Stahl, Spector & Frank

Attys. For Defts.

200 East Post Road

White Plains, New York 10601

Mary H. Smith, J.

This is an action sounding in ejectment and trespass, wherein plaintiffs also seek to quiet title by judgment declaring that plaintiffs are the owners in fee simple of certain property, and compensatory and punitive damages. Defendants have counterclaimed seeking judgment quieting title and declaring that defendants are the owners of the disputed property by virtue of adverse possession. Plaintiffs presently are moving for summary judgment on their complaint and defendants are cross-moving for summary judgment on their counterclaim.

Since July 26, 2001, plaintiffs have been the deed owner of premises identified as 120 North Hampton Drive, White Plains, New York. Immediately adjacent to this property is property identified at 206 Woodhampton Drive, which defendants have been the deed owner of since August 24, 2001. According to plaintiffs, defendants maintain a stockade fence which encroaches approximately 8 to 14 [*2]feet along the southerly boundary of plaintiffs' property and have placed a trampoline in the vicinity of this fence, further encroaching upon plaintiffs' property, and that defendants have refused plaintiffs' demand that they remove both. Plaintiffs argue that their submitted survey map and the deed to the plaintiffs from their predecessor in title establish as a matter of law their entitlement to possession of the disputed property and defendants' ejectment therefrom. Further, to the extent that defendants claim adverse possession of the disputed property, plaintiffs contend that defendants cannot establish that they or their predecessors in title occupied the disputed property under a claim of right, or that they "cultivated or improved" or effected a "substantial enclosure of the property" and thus they are not entitled to ownership of the property by adverse possession.

Defendants conversely argue that they are the lawful owners of the disputed property by adverse possession. In support thereof, defendants aver that, at the time they had purchased their property, a stockade fence was completely intact and that it had been represented to them by the broker that the property included all property within the bounds of the existing fence. There also had existed at that time children's play equipment situated within or immediately next to the fence in issue, which play equipment remains to date, as evidenced in photographs that defendants submit. Defendants claim that all times since their purchasing the property they have treated the entire enclosed area as their property, walking their dogs thereon and performing all maintenance work with respect thereto. Defendant Adam Einhorn states that at no time did he or his wife have knowledge that plaintiffs or their predecessors had any claim "to any portion of our backyard on our side of the stockade fence until so notified by the Plaintiffs' attorneys."

In further support of defendants' cross-motion, they have submitted an affidavit from Robert Williams. Mr. Williams' parents had owned the property now owned by defendants and Mr. Williams had resided thereat from 1964 until 1982. He states that he is "very familiar with the conditions which existed on the premises, including the rear yard from 1964 until April, 2001." According to Mr. Williams, in or about 1971, his parents, after installing an in-ground swimming pool, had "caused a stockade fence to be erected up against the original chain link fence in the yard. That stockade fence was continuously in place separating the rear yards of the two properties and enclosing the back yard from when my parents had it built until 2001 when my mother sold the property." Mr. William further states that his parents had "always exercised control and dominion over the rear yard ... up to the original chain link and then the the (sic) stockade fence which separated the rear yards of the two properties," and that "numerous activities took place immediately adjacent to the rear stockade [*3]fence which were consistent with their ownership and control of the that property." All of the Williams' activities in the rear of the yard adjacent to the stockade fence were, according to Mr. Williams, "carried out in an open and obvious manners and no efforts were ever made to conceal any activities ..." Mr. Williams also avers that his "parents neither sort (sic) nor obtained permission from any other persons to utilize any portion of that property."

Initially, the Court finds that plaintiffs' motion is not substantively defective, as urged by defendants, merely because same is supported only by an attorney's affirmation. Indeed, it is well settled that an attorney affirmation is the proper vehicle for introducing, as here, documents supporting the moving party's entitlement to judgment. See Davey v. Dolan, 46 AD3d 854 (2nd Dept. 2007); State v. Grecco, 43 AD3d 397 (2nd Dept. 2007); Ellman v. Village of Rhinebeck, 41 AD3d 635 (2nd Dept. 2007); Villaplana v. Kane Associates Family Ltd. Partnership, 17 Misc 3d 1129(A), (Sup. Ct. NY Co. 2007).

The Court further finds at the outset that plaintiffs correctly argue that defendants' cross-motion is untimely; however, the merits thereof nevertheless may and shall be addressed given its direct correlation to the factual and legal issues raised in plaintiffs' timely summary judgment motion. See Filannino v. Triborough Bridge and Tunnel Authority, 34 AD3d 280 (1st Dept. 2006); Ferris v. Millman, 17 Misc 3d 898 (Kings Co. 2007).

Anent the merits of the parties' motions, "[a] party seeking to obtain title by adverse possession on a claim not based upon a written instrument must establish, by clear and convincing evidence, that the possession of the subject land was hostile, under a claim of right, actual, open, notorious and exclusive, and the possession must have been continuous throughout the statutory period." Gaglioti v. Schneider, 272 AD2d 436 (2nd Dept. 2000), see, also Hall v. Sinclair, 35 AD3d 660 (2nd Dept. 2006); DiStefano v. Saatchi, 308 AD2d 502 (2nd Dept. 2003); Rowland v. Crystal Bay Const., Inc., 301 AD2d 585, 586 (2nd Dept. 2003). However, "[m]ere possession, no matter how long continued, gives no title by adverse possession unless under claim of right." Harbor Estates Ltd. Partnership v. May, 294 AD2d 399 (2nd Dept. 2002). "The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period.'" Walling v. Przybylo, 7 NY3d 228 (2006). Notably, "[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 of or infringement upon the owner's rights." Gore v. Cambereri, 203 AD2d 551 (2nd Dept. [*4]2003). The adverse possessor's acts must be of such character that a titled owner would recognize same as manifesting a claim to property that was hostile to his own, and that he needed to act to preserve his rights in said property. See RSVL Inc. v. Portillo, 16 Misc 3d 1137(A), (Sup. Ct. Co. 2007), citing Giannone v. Trotwood Corp., 266 AD2d 430 (2nd Dept. 1999). It matters not that the adverse possessor has actual knowledge of the true owner at the time of possession. See Hall v. Sinclair, supra, 35 AD3d 660. Moreover, hostile possession is presumed where it is demonstrated that the disputed property was used openly and continuously, see Katona v. Low, 226 AD2d 443 (2nd Dept. 1996), and there is no showing of the adverse possessor's permissive use. See Koudelolou v. Sakalis, 29 AD3d 640 (2nd Dept. 2006). Where an encroachment is initially by permissive use, that permission is presumed to continue in the absence of evidence to the contrary. See Longshore v. Hoel Pond Landing Inc., 284 AD2d 815 (3rd Dept. 2001).

Additionally, by statutory requirement, the claiming party must also establish that the subject property was either "usually cultivated or improved" or "protected by a substantial enclosure." RPAPL §522; Gaglioti v. Schneider, supra. The type of cultivation or improvement necessary to satisfy the requirement of "usually cultivated or improved" varies with the character of the property, and must consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners. See Gallas v. Duchesne, 268 AD2d 728 (3rd Dept. 2000); Parillo v. Prunier, 257 AD2d 807 (3rd Dept. 1999); Birnbaum v. Brody, 156 AD2d 408 (2nd Dept. 1989). To satisfy this element, "[s]ubstantial and obvious alteration is required. Limited activities such as cutting the grass, raking, clearing debris, and even planting or removing a few trees are thus insufficient." RSVL Inc. v. Portillo, supra, 16 Misc 3d 1137(A).

After this Court's careful consideration fo the record at bar and upon consideration of the parties' respective arguments and application of the applicable law, the Court finds that defendants have failed to raise by clear and convincing proof a triable issue of fact with respect to plaintiffs' prima facie showing of entitlement to judgment and that plaintiffs accordingly are entitled to judgment on their complaint. Concomitantly, defendants' cross-motion is denied as moot.

While the record at bar clearly establishes that a fence encroaching on plaintiffs' property had been in place in excess of the 10-year required period of time for establishing a property right by adverse possession, and that defendants and their predecessors in title continuously had maintained this enclosed property by limited activities, including cutting the grass and the like, and that defendants' and their predecessors' use of same had [*5]been actual, exclusive, open and obvious, nevertheless, there is no evidentiary support for the critical and dispositive finding that defendants and their predecessors had occupied this disputed property under a claim of right and without permission from plaintiffs' predecessor. The mere presence of the stockade fence does not establish a claim of right; the most that can be state on the record at bar is that the Williams, defendants' predecessors in title, had constructed the stockade fence with the knowledge and consent of plaintiffs' predecessors in title, who did not object thereto on the basis of a "neighborly accommodation," and this is wholly inadequate to demonstrate any hostile claim of right. See Mohawk Paper Mills Inc. v. Colaruotolo, 256 AD2d 924 (3rd Dept. 1998); RSVL Inc. v. Portillo, supra, 16 Misc 3d 1137(A); Airstream Corp. v. 330 Lawson Corp., 2007 WL 4289252 (Sup. Ct. NY Co. 2007); Kennelty-Cohen v. Henry, 2008 WL 227007 (Nass. Co. Sup. Ct. 2008).

Plaintiffs shall submit judgment, on notice, within twenty (20) days after the date hereof.

Dated: March 5, 2008

White Plains, New York

_________________________________

MARY H. SMITH

J.S.C.