Matter of Marin

[*1] Matter of Marin 2013 NY Slip Op 50736(U) Decided on March 12, 2013 Sur Ct, Nassau County McCarty, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2013
Sur Ct, Nassau County

In the Matter of the Estate of Jon E. Marin, Deceased.



2010-361606/B



Stanley A. Sanders, Esq. (for respondents)

2030 Bergen Ave.

Brooklyn, NY 11234

Paul Ades (for petitioner)

18 W. Main St., Ste. 103

P.O. Box 790

Babylon, NY 11702

Edward W. McCarty, J.

In this proceeding petitioner Alicia Mitchell, executrix of the above named estate, which estate is the owner of certain real property located at 78 Judith Court, East Rockaway, NY [the "Property"], petitions for an order directing respondents, Fredric S. Masure and Denise Masure, the owners and residents of certain real property adjacent to the Property the address of which is 72 Judith Court, East Rockaway, NY, [the "Masure Property"] to remove a fence owned by respondents which petitioner alleges encroaches as much as 4.6 feet south of part of the northerly record line and for the reimbursement of any reduction in sales price, if necessary, to close title and to recover incidental costs and expenses.

The estate entered into a written contract dated April of 2011 to sell the Property and in connection therewith a current survey and title search was obtained by the buyer. The survey is dated June 23, 2011. It shows a single fence which appears to be encroaching 4.6 feet at its widest point on to the Property. As regards to the fence and the strip of land between the fence and the northerly record boundary line [circled in red on the survey, Exhibit D to the petition, the "Disputed Strip"] the title company excepted to insuring the Disputed Strip as "Owner [the estate] may be out of possession of that strip of land ... ."

Respondents have interposed an answer to the petition with a number of affirmative defenses and a counterclaim. There is no genuine issue that the properties share a common property line - the northern property boundary line of the Property and the southern property boundary line of the Masure Property. One of the defenses is that the survey upon which petitioner relies is defective, flawed or incorrect. Respondents annex their own survey dated February 14, 2012. That survey shows two (2) fences, and an encroachment by their above ground pool of 0.35 feet. Further, respondents annex photographic evidence of the 2 fences and aver that their fence is 3 feet inside the common property line [for the sake of accuracy, survey says 3.05 ft.] and the other fence alleged in the petition, ½ to 1 foot south, is one that was erected by the owners of the property. [*2]

With this state of affairs respondents have refused to remove the fence and the buyer has refused to close. The basis for respondents' refusal is articulated in their counterclaim which seeks a judgment of title to respondents' version of the Disputed Strip - the area 3.05 ft. south of the common property line and running easterly 37 ft. from the northwest corner- by adverse possession as per the applicable sections of the RPAPL.

The Masures acquired their property in 1997. When they bought it there was a wooden fence, 6 feet high, same location, length, etc., as described in their survey. In 1999 they installed the above ground swimming pool with the encroachment as described in their survey. In 2000 they placed additional shrubs, a tree and an in ground sprinkler system inside the enclosed fence area. In mid-July 2000 they had a contractor replace that wooden fence with a new wooden fence - same height, length and location.

A reply to the counterclaim has been filed which sets forth a number of affirmative defenses, including unclean hands, failure to name indispensable parties, and other allegations that are either factually inaccurate on their face or not true affirmative defenses.[FN1]

In an additional submission by the estate its counsel implicitly concedes the accuracy of respondents version of the Disputed Strip (¶¶ 6-8 Ades Affidavit sworn to January 7, 2012 [sic]) thus framing for this court the issue of whether the claims may be determined as a matter of law.

The burden of proof in an adverse possession claim was and still is clear and convincing evidence and the essential five elements of such a claim were and still are that the possession be (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period of ten years. (Walling v Przbylo, 7 NY3d 228 [2006]; Ram v Dann, 84 AD3d 1204 [2d Dept 2011]). Effective, however, July 7, 2008 the Legislature enacted

several amendments to the Real Property Actions and Proceedings Law, Article 5, which in some respects modified and in other respects abrogated the common law elements of adverse possession (see L. 2008, ch. 269). Of the most significance at bar, a new §543 was added to the statutory scheme to deem certain "de minimis, non structural encroachments including ... fences ... [to] be permissive and non-adverse" and further that certain maintenance actions, such as "lawn mowing," be similarly situated.

Because it buttresses her argument that respondents cannot establish their claim as a matter of law as the 2008 amendments are applicable, petitioner conveniently ignores and or totally mischaracterizes the uncontradicted proof concerning the encroaching fence: it was in place when the Masures acquired their property in 1997. It had been wooden and 6 feet high. In 2000 that wooden fence was replaced with a new wooden fence - same height, length and location as the original. The replacement of the original fence with something of like kind in the same area did not commence anew the 10 year requirement and thus the Masures' use and possession of this parcel ripened into title after ten years, vesting in 2007, prior to enactment of the 2008 amendments to the RPAPL which are accordingly inapplicable to the respondents' claim (Hogan v Kelly, 86 AD3d 590 [2d Dept 2011]); Franza v Olin, 73 AD3d 44 [4th Dept 2010]). [*3]

Based upon the undisputed facts, detailing the nature of respondents' possession, cultivation, etc. of the Disputed Strip and the length of time of such possession, respondents have established the requisite elements of adverse possession, by clear and convincing evidence, as a matter of law (Sprotte v Fahey, 95 AD3d 1103 [2d Dept 2012]); Kelly v Bastianic, 93 AD3d 691[2d Dept 2012]).

By reason of the foregoing, the petition is dismissed and the respondents are awarded judgment on their counterclaim.

This constitutes the decision and order of this court.

Settle decree on notice.

Dated: March 12, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court Footnotes

Footnote 1:The thrust of the affirmative defense of unclean hands is a Village of East Rockaway building permit violation issued in 2012 as regards the pool apparently at the behest of the petitioner. Petitioner has not cited, nor has the court's independent research uncovered any authority for the proposition that equitable defenses may defeat a claim of adverse possession.