Meron v Schepsman

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Meron v Schepsman 2011 NY Slip Op 33521(U) December 14, 2011 Supreme Court, Nassau County Docket Number: 14794/11 Judge: Thomas Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. .......... .............. [* 1] s c.,4 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUN OF NASSAU Present: Hon. Thomas Feinman Justice DANEL MERON and JEIFER MERON TRS PART 13 NASSAU COUNTY INEX NO. 14794/11 Plaitiffs, MOTION SUBMISSION DATE: 11/9/11 - agait MARTI SCHEPSMAN and ELLEN ZW ALSKY MOTION SEQUENCE NO. Defendats. The following papers re on ths motion: Order to Show Cause and Afdavits............... Memorandum of Law in Support of Motion... Afftion in Opposition............................ Reply Afation................... Memorandum of Law in Support of Reply..... The plaintiffs , by way of Order to Show Cause date Octobe 14 , 2011 , obtained a Temporar Restraining Order, (TRO), by the Honorable R. Bru Cozzns, Jr., restining and enjoinng the defendats from removig the brick fire pit and plantings/trs located at the westrly propert line of the defendats' propert locate at 47 Jefferson Boulevard, Atlantic Beach, New York, or in any way interferig with plaintiffs use and beneficial enjoyment- of the plaintiffs propert. Plaintiffs submit a Memoradum of Law in support of the motion. The defendants submit opposition. The plaitiffs submit a reply afrmtion and Memoradum of Law in support of plaintiffs ' reply. It is undispute tht prior to servg the defendants with the instat TRO , the defendants, on the same day tht plaiti obtained the TRO, to wit, October 14 2011 , the defendats removed the eight (8) foot high stucco wall adjacent to plaintiffs propert. [* 2] BACKGROUN The plaintiffs claim tht frm 1995, and up until today, approximaly 16 years, the plaitiffs, and the pror owner of plaintiffs ' prope, expended money to maita, landse , and cultivate a strp of land, inclusive of an eight (8) foot high stco wal and brick barbeque (hereiner referred to as the "BBQ"). The plaintiffs own and reside at propert locted at 40 Itha Avenue , Atlantic Beah, New York. The defendats own and reside at propert located at 47 Jefferson Boulevar. The defendants' propert is diectly east of the plaitiffs ' prope. The plaintiffs provide tht the BBQ is imedately adjacent to the concrete " stcco wal" tht extends alongside the defendats' propert. The plaitis maita tht the dispute parel, approxitely thee (3) feet wide by seventy-six (76) feet long, is completely ' 'walled oft" ftom defendats' propert, and contans the BBQ, as well as plants, tres and shbber plante and maitaned plaitiffs , and plaintifs ' predecessors. strtu, The plaintiffs refer to a copy of a surey of plaitiffs ' proper dated October 27, 1961 showing the location of the stuo wall located the (3) plus feet easterly of the plaintiffs ' propert. The plaitiffs also refer to the Buiding Deparent of the Incorprate Vilage of Atlantic Beach 1941 surey of plaintiffs ' premises showig the BBQ. Plaitiffs mata tht the stcc wall has ben par of the plaitiffs ' propert, and plaitiffs ' preecessor- in-title, for at lea fift (50) year and the BBQ pit has ben par of the plaitiffs ' propert, and plaintiffs ' predecessor- in-title , for at lea seventy (70) years. The plaitiffs argue tht the plaitiffs ' use, and plaitiffs ' predecessor- in-title s us of the by planting trees, shrbbery and maitenace of the BBQ, all close off by the stu wall , for over seventy (70) yea , was open, continuous , hostile and unntepte for more than ten (10) yeas. The plaitiffs submit tht title to the disputed parcel wa obtained by adverse possession no later 2005. subject stp ofland, th The defendats submit that the thee (3) feet located behid the concrete wall on the defendats' propert was not used by defendats , or defendats' neighbors, as a result of an easement by Verizon, which the defendats successfuly removed. As so, the defendats sougt to enclose the easement porton of their propert. The defendats conted tht the plaintiffs never usd the BBQ, that the disputed parcel was not cultivate by the plaintiffs, but raer, left to grow wild for years. DISCUSSION In order to obta a prelina injunction, the par seekig the relief mus demonstrate a likelihood of success on the merits, tht ireparble or injur will occur if the relief is not the balancing of the equities favor the par seekig the prlimin injunction. granted and (WT. Grant Co. v. Srogi, 52 NY2d 496; se also Town of East Hampton v. Buffa, 157 AD2d 714). A pria facie showig of a reonable probabilty of succss is sufcient to obta a preliminar th injunction. (Weissman v. Kubasek, ha 112 AD2d 1086). [* 3] The existnce ofissues of fact for tral injunction in the approprate circumstace. preclude the Cour from issug a prelimina Lien 198 AD2d 186). does not (Ma v. In order to establish a clai of advers possession, the Cour of Appeals held that the followig five elements mus be proved: possession mus be (1) hostle under a claim of right; (2) actu; (3) open and notorious; (4) exclusive; and (5) contiuous for the reuisite perod, ten year. (a)ct knowledge tht another person Przybylo 7 NY3d 228). The Cour held tht " is the real title owner does not , in and of itslf, defeat a clai v. (Wallng (Id. The Cour state that " (c)onduct wil of right by an adverse possession prevai over knowledge, paricularly When the owners have acquiesced in the exercise of ownership rights by the advers possessors (Id. Approximately two years later, in 2008 , the New York State Legislatue enactd Rea 543(1) which by sttute, deemed Actions and Proceedings Law, (RAPL), encroachments and activities as "permssive and non-adverse , by statig encroachments, as per cert Proper 9543(1 ) (a) as "de miimus non-strtu encrachments includg fences , hedges, plantings, sheds, and non-strctu walls" and "acts oflawn mowig or similar matenace across the boundar line Wallng, supra, the Cour had rued of an adjoing landowner propert" . (RAPL 543(2)). In that the Wallings acuid title to the disputed parcel tht belonged to the Przbylos by treatig the propert as their own, despite the Wallings ' knowledge of the Przbylos ' record ownership of the disputed parel. Now, under RP APL 9501 (3), the ocupier who enters possession under a clai of right must have a "reasonale basis for the belief that the proper belongs to the adverse possessor Notably, the Act provides tht " Ths act shal tae effect imedately (July 7 2008), and shal apply to filed on or afr such effective da. " (RAPL 543; L. 2008 , c. 269 9). clai Prior to the 2008 amendments , a claimat by advers possession not instrent mus show actu occupation of the premises, requing cultivate or improved, or protected by substtial enclosure. (City ofTonaan bas upon a wrtten tht the parcel be usualy v. Ellcott Creek Homeowner s Association, Inc., 86 AD2d 118). Cultivating or improvi the premises have been found to be sufcient notice on the owner. (Beyer v. Patierno, 29 AD3d 613). (A)n inference of hostile possession or clai of right will be drwn when the other elements of adver possession are estblished uness, prior to the vestig of title , the par in possession ha that title belongs to another. (Id. quoting Gerlach v. Russo Realty Corp., 264 AD2d 756). adtt After the 2008 amendments, "the existence of de minmus non-stctu encroachments, to , fences, hedges, shrbbe, plantigs , shed and non- stctal walls includig but not limite shall be deeed permssive and non- advere . (RAPL 543(1)). A rock wall placed along a formerly recognd common bounda line of adjoining parls of land was found to be a "nonstrctul encroachment" with the sttute deemig " de mimus " non-strctual encroachments permissive and non-adverse, and therefore, the buiding of the wal did not satisfy the advere element oflandowner ' s adverse possession clai, since the wal was not par of a strcte providing support to somethng else. 71 AD3d 1325). A landowner s maitenance oflawn (Sawerv. Prosky, walay, beh and plantings did not constute adverse occupancy of the disputed strp of land along adjoinng parcels. (Id) [* 4] Here, the plaitiffs clai tht title was acuired date of the amendments, and, therefore, possession prior to the effective ' clai. Plaintiffs the amendment does not apply to plaitiffs 73 AD3d 44 , which held tht it would be v. Olin, Franza to the adverse possessor as title to the dispute propert by adverse rely on authority, includig the Cour in 543 unconstituona to apply RP APL would have vest in plaitiff prior to the 2008 amendment. The 2008 amendments did not apply prior to the. effective date of the to a prescriptive eaement tht wa alleged to have vest amendments. (Barra v. 75 AD3d 821). Norfolk Southern Railway Compan, aplied the 2008 amendments and upheld the dismissal Sawyer, supra, However, the Cour in of plaitis ' adver possession. 86 AD3d 590, held tht Kelly, Hogan v. In any event, recently, the Second Deparent in (a)mendments to Rea Proper Actions and Prceegs Law, (RAPL), which included, for the title by advers first tie, a sttutory defition of the ' clai of right' element necssar to prior possession, canot be reoacvely applied to deprive a claimant a propert right which vest with their stated tht it Hogan, supra, 50 1. The Cour in to their enactment" ; citig RP APL be retroactively colleas in the Thd and Four Deparents tht the amendments applied to deprive a claimant of a prope right which vestd prior to their enatment" , citig Barav. NorfolkS. Ry. Co., 79 AD3d 1629; 1288;Perrv. Edards, Hammondv. Baker 81 AD3d Franza, supra. 75 AD3d 821; and acui caot Here, as plaitiffs clai that title was acuied date of the amendments wil not be applied Upon the foregoing, the plaitiffs ireparble har or injur by advers retractively. have ag possession prior to the effective deonsat a likelihoo of success on the merits, should the prelimna injunction not be granted, and tht the balancing The plaintiffs conduct of cultivatig the disputed parcel which was enclosed by a stuco wall contaning the BBQ indicates an inernce of hoste possesion or clai of right. The defendats have not disput irrarable har in their opposition. of the equities favors the plaitiffs. In light of the foregoing, it is hereby grte a prelim injunction wherby the ORDERED tht the plaitiffs ar hereby defendats Mar Schepsman and Ellen Zwalsky, their agents, servts, employees or any peons any acon with acti on their behaf, or at their dition, are and enjoin frm respect to the removal of the brick pit and the plantings/trees refernced therein at the westrly propert line of the defendat' s properly at 47 Jefferson Boulevard, Atlantic Beah, New York, or in any way interferig with plaintiffs us and beneficial enjoyment of the plaitiffs propertes , and it is hereby fi reed loc fuer -4. tag [* 5] The pares are hereby dite to appear for a Preliminar Conference which shall be held at the Preliminar Conference par located at the Nassau County Supreme Cour on the 18th day Janua, 2012, at 9:30 A. M. Ths diective, with respet to the dae of the Conferece, is subject the right of the Clerk to fix an alternte date should scheduling reuire. The attorneys for the plaitiff shal see a copy of ths order on the Prelimna Conferce Clerk and the attrneys for the defendats. . ENT Dated: December 14, 2011 cc: Minerva and D' Agostno, P. Goldbeg & Carlton, PLLC ENTERED DEC 19 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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