LBMH Group, L.P. v Safer

[*1] LBMH Group, L.P. v Safer 2010 NY Slip Op 52175(U) [29 Misc 3d 1236(A)] Decided on November 4, 2010 Supreme Court, New York County Friedman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2010
Supreme Court, New York County

LBMH Group, L.P., Plaintiff(s),

against

Morley Safer and Jane Safer, Defendant(s).



111637/09



For Plaintiff

Peter D. Mustalish, Esq.

300 W. 12th Street, No. 5F

New York, New York 100 14

For Defendant

Randy Heller

Gallet Dreyer & Berkey, LLP

845 Third Avenue, 8th Floor

New York, NY 10022

Marcy S. Friedman, J.

DECISION/ORDERx

In this action, plaintiff LBMH Group, L.P. seeks a permanent injunction directing defendants, Morley Safer and Jane Safer, to remove a wall that is allegedly encroaching upon plaintiff's property, and a declaration that it is the owner of the disputed parcel under the wall. Plaintiff moves for summary judgment as to liability on its claims against defendants. The first cause of action is for an injunction; the second is for a judgment declaring that it is the owner of the disputed parcel; and the third seeks damages due to the alleged structural unsoundness of defendants' wall. Defendants cross-move for summary judgment dismissing plaintiff's first and second causes of action, and for summary judgment on their counterclaim for a declaratory judgment that they are the owners of the disputed property by adverse possession. [*2]

The standards for summary judgment are well settled. The movant must tender evidence, by proof in admissible form, to establish the cause of action "sufficiently to warrant the court as a matter of law in directing judgment." (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Once such proof has been offered, to defeat summary judgment "the opposing party must show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. [b])." (Zuckerman, 49 NY2d at 562.)

As to the parties' claims involving title to the property and adverse possession, the court finds that, contrary to plaintiff's contention, the 2008 amendments to the RPAPL do not apply to the instant action. It is undisputed that defendants' title to the property would have vested prior to the enactment of the amendments. The Appellate Division, Third and Fourth Departments, have held that under such circumstances, the amendments may not be applied retroactively to divest a party of a vested property right. (Franza v Olin, 73 AD3d 44 [4th Dept 2010]; Barra v Norfolk Southern Railway Co., 75 AD3d 821 [3d Dept 2010].) Contrary to plaintiff's contention at oral argument, this court is bound by the determinations of the other Appellate Divisions of the Supreme Court in the absence of a determination by the Court of Appeals or the Appellate Division, First Department. (See Tzolis v Wolff, 39 AD3d 138 [1st Dept 2007]; People v Shakur, 215 AD2d 184 [1st Dept 1995].)

Accordingly, the court need not reach the issue of whether defendants' wall is non-structural or whether the alleged encroachment of the wall is de minimis, because those exceptions to an adverse possession claim are found in the 2008 amendments to the RPAPL. (See RPAPL 543.)

Prior to the 2008 amendments, to support a claim for adverse possession, a wall was required to constitute a "substantial enclosure." (RPAPL 522[2].) Here, defendants' expert opined that the wall enclosed defendants' property. (See Wexler Aff. In Support of Cross-Motion, at ¶ 7.) Plaintiff's expert also opined that the subject wall "encloses Defendants' backyard." (Wolfson Aff. In Support of Motion, at ¶ 8[c].) Thus, the wall at issue here is a sufficient enclosure to support a claim for adverse possession.

It is well settled that "[t]o 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." (Walling v Przybylo, 7 NY3d 228, 232 [2006].)

It is undisputed that for over ten years, starting as early as 1996, defendants possessed the disputed parcel of land in a manner that was open, notorious, continuous, and hostile to the interests of plaintiff. In factually similar circumstances, such conduct has been held sufficient to warrant a finding of acquisition of the parcel by adverse possession. (Id. at 232.)

It is further settled that "actual knowledge that another person is the title owner does not, in and of itself, defeat a claim of right by an adverse possessor." (Id. at 230.) Rather, "[t]he 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." (Id. at 232 [quotation marks and citation omitted].) On this record, plaintiff does not argue that defendants had actual notice of plaintiff's title. More significantly, there is no dispute that [*3]plaintiff never objected to the presence of defendants' wall prior to the commencement of the instant action. The failure of plaintiff to assert its rights in a timely manner prevents it from prevailing on its claim. (Id.)

The court rejects plaintiff's contention that summary judgment should be denied due to its claimed need for discovery. It must "appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated." (CPLR 3212[f].) "A mere chance or hope that something will be uncovered [through discovery] which will add to the case is insufficient." (Harris v Alcan Aluminum Corp., 91 AD2d 830, 831 [4th Dept 1982], affd for reasons stated below 58 NY2d 1036 [1983].) Thus, determination of a motion for summary judgment will not be avoided by a claimed need for discovery, even where the opponent of the motion alleges wrongdoing on the movant's part, unless the misconduct is identified with specificity, and at least some "evidentiary basis" is offered "to suggest" that discovery may lead to relevant evidence. (See Harris, 91 AD2d at 831; Boston Safe Deposit & Trust Co. v Hoffman, 177 AD2d 368 [1st Dept 1991].) Here, plaintiff makes no showing of any issue on which discovery is required. Plaintiff's own expert had the opportunity to inspect the wall and to submit an affidavit on the instant motion.

Plaintiff's third cause of action seeks damages to its own wall which abuts the disputed parcel, based on the allegation that defendants' wall is structurally unsound. Plaintiff fails to make a prima facie showing of this claim. Its expert's affidavit is silent as to whether defendants' wall is structurally unsound or causing damages to plaintiff's wall. Finally, the court need not address defendants' second counterclaim for negligence, as they have not moved on that counterclaim.

It is hereby ORDERED that plaintiff's motion for summary judgment is denied; and it is further

ORDERED that the cross-motion of defendants for summary judgment is granted to the extent of dismissing plaintiff's first and second causes of action against them; and it is further

ORDERED, ADJUDGED, and DECLARED that defendants Morley Safer and Jane Safer are the lawful owners of the disputed parcel, vested with absolute and unencumbered title in fee to the property; and it further

ORDERED that the parties are directed to appear in Part 57 (Room 335, 60 Centre St.) for a preliminary conference on Thursday, December 9, 2010, at 11:00 a.m.

This constitutes the decision, order, and judgment of the court.

ENTER:

Dated:New York, New York

November 4, 2010

___________________________

MARCY FRIEDMAN, J.S.C.