Lorenz v Soares

[*1] Lorenz v Soares 2018 NY Slip Op 50019(U) Decided on January 10, 2018 Supreme Court, Westchester County Giacomo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2018
Supreme Court, Westchester County

Jason T. Lorenz and SHARON F. KAVY a/k/a SHARON F. LORENZ, Plaintiffs,

against

Antonio D. Soares and ELIZA S. SOARES, Defendants.



71204/2015



Law Office of Jared Altman

Jared Altman, Esq.

Attorneys for defendants

2125 Albany Post Road

Montrose, New York 10548

914-737-0200

Reisman Rubeo McClure & Altman LLP

Mark I. Reisman, Esq.

Attorneys for plaintiffs

151 Broadway

Hawthorne, NY 10532

914-495-3050
William J. Giacomo, J.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to determine claims to real property (1) the defendants move for summary judgment dismissing the complaint (motion sequence No.1); and (2) the plaintiffs cross-move to amend the complaint to add a cause of action for precise location (motion sequence #2):

Papers Considered

Notice of Motion/Affirmation of Jared Altman, Esq./Exhibits A-S;

Notice of Cross Motion/Affirmation of Mark I. Reisman, Esq./Exhibits 1-4;

Affirmation of Jared Altman, Esq. in Reply and Opposition.

Factual and Procedural Background

Plaintiffs are the owners of real property located at 3 Bayden Road, Ossining, New York. Plaintiffs purchased the property in April 2005. The backyard of 3 Bayden Road is adjacent to three different properties that are located on Feeney Road, including 10 Feeney Road, owned by the defendants. Defendants acquired title to their property in January 1988. A chain link fence existed on the strip of property that runs along the southern boundary of defendants' lot and close to portions of the northern boundary of plaintiffs' lot. The fence was located entirely on the defendant's property and was set back approximately ten feet.

Plaintiffs commenced this action seeking to quiet title by adverse possession of the area of defendants' property between the chain link fence and the boundary line of plaintiffs' property, which covers approximately 800 feet (hereinafter the "disputed land"), and damages for trespass, nuisance, and an injunction. Plaintiffs allege that between 2005 and 2015, they maintained the grass of the disputed land and planted a vegetable garden. Plaintiffs also assert that a shed was erected on the disputed land by their predecessor in interest.

Relevant Deposition Testimony

At an examination before trial, plaintiff Jason Lorenz testified that he and his wife purchased 3 Bayden Road on April 22, 2005. Prior to purchase, they viewed the back yard and observed a chain-link fence on defendants' property. There were trees and shrubbery in front of the fence.

Mr. Lorenz testified that 3 Bayden is a pie shaped piece of property. On the northerly side of the backyard there are three abutting neighbors' property lines; the defendants' property is in the middle. A post and rail fence began at the front of 3 Bayden Road and continued to the backyard and became L-shaped into the first abutting property. From there, a chain link fence attached on defendants' property and continued the length of the southern portion of defendants' property. Mr. Lorenz described the chain link fence as green and 4 feet tall. The disputed land was south of the chain link fence and reached the property line. Mrs. Lorenz testified at her examination before trial that she measured the disputed land as 80 feet long. Plaintiffs replaced the post and rail fence in 2010. Plaintiffs never performed any maintenance or repairs to the chain link fence.

Mr. Lorenz never had any conversations with the prior property owners about the disputed land. Plaintiffs planted four arborvitaes in 2010 on the disputed land. There are also maple trees on the disputed land. The maple trees have been there as long as plaintiffs owned the property. Mr. Lorenz does not know who planted the maple trees. According to plaintiffs, when they purchased their property, a metal shed existed in the backyard on the disputed land which was put up by Brian Rink, a previous owner of the 3 Bayden property. Mr. Lorenz moved the shed in 2010.

Mr. and Mrs. Lorenz both testified that between the time plaintiffs purchased the property in 2005 and 2010, they did not plant anything on the disputed land and merely mowed the area and cleaned up any fallen branches. They testified that a shed was located on the disputed land. In 2010, they retained a company to take down pine trees and planted four arborvitaes on the disputed land. [*2]In the spring of 2011, plaintiffs planted a vegetable garden on the disputed land.

Plaintiffs had a pool installed in their backyard in 2015. Around that time, defendants removed the chain link fence. As a result, plaintiffs did not have a proper barrier around the pool and had to install a fence on their property. It was at that time that they started investigating a lawsuit with respect to the disputed land.

Brian Rink, a previous owner of the plaintiffs' property, testified that he and his wife moved to 3 Bayden Road in 1993. They lived in the house for two or three years and then rented it for approximately three or four years prior to selling the property. Mr. Rink testified that he erected an aluminum shed on the property. Mr. Rink testified that when installing the shed, he tried to keep it on his own property because he didn't want any problems. He thought the trees denoted the property line. Mr. Rink intended to install the shed about a foot away from the property line. Mr. Rink was shown defendants' exhibit A, which is attached to defendants' motion papers, and was asked to mark the location of the shed that he installed. Mr. Rink drew a box entirely within the boundary of 3 Bayden Road to depict the location of the shed. He testified that he did not do any clean up, planting, or mowing of the disputed land.

Motions

Defendants move for summary judgment dismissing the complaint. Defendants argue that awarding plaintiffs adverse possession of the disputed land would violate public policy as a Town of Ossining Zoning Ordinance requires that all single family residences occupy a minimum lot area of 15,000 square feet. The size of the lot of defendants' property is 15,156 square feet and if they lost 900 square feet to plaintiffs, their property would not be in compliance with the zoning ordinance.

Defendants further argue that there has been no showing of exclusive occupancy by plaintiffs of the disputed land. The chain link fence, defendants argue, was a flimsy wire green fence and was not a substantial enclosure pursuant to RPAPL 522.2. In addition, while plaintiffs assert that a portion of the shed was erected on the disputed land, Mr. Rink, who installed the shed, testified that it was entirely within plaintiffs' property and was not situated on the disputed land. Defendants argue that the minimal acts of mowing grass and cleaning branches are not adequate to put them on notice of adverse possession. Defendants argue that the plaintiffs have not satisfied the ten-year requirement for adverse possession, which, if at all, did not begin until 2010 when plaintiffs cleared the disputed land and planted a garden. Defendants also seek summary judgment in their favor on the causes of action for trespass and nuisance arguing that since plaintiffs do not own the disputed land, they cannot assert such claims.

Plaintiffs oppose defendants' motion arguing that defendants rely upon hearsay to support their claims and failed to include authenticated exhibits. As to the merits, plaintiffs argue that issues of fact exist in this case including whether the shed erected by Mr. Rink was on the disputed land; whether the disputed land was visible from defendants' property; whether the plaintiffs' use of the disputed land was continuous for ten years; whether the chain link fence qualified as a substantial enclosure; whether the plaintiffs' use of the property is sufficient to indicate exclusive ownership; and whether the plaintiffs' predecessor in interest built the fence. Plaintiffs argue that the defendants' zoning ordinance argument is without merit and unsupported by any applicable law. Further, [*3]plaintiffs argue that their claims for trespass and nuisance should not be dismissed as the ownership of the disputed land is at issue in this action.

Plaintiffs also cross-move to amend the complaint to add a cause of action for practical location. They argue that the proposed amendment to the complaint is not palpably insufficient or patently devoid of merit and, if granted, would not prejudice the defendants.

In opposition to the cross motion, defendants claim that the proposed amendment to the complaint has no merit. Defendants argue that plaintiffs cannot establish two key elements required for a cause of action for practical location; to wit, mutual acquiescence and clear demarcation.

Discussion

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; 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 (see Winegrad v NY Univ. Med. Ctr., 64 NY2d at 853).

"Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Zuckerman v City of New York, 49 NY2d at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to defeat a prima facie showing of entitlement to summary judgment (see Zuckerman v New York, 49 NY2d at 562).

"The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]; see Dykeman v Heht, 52 AD3d 767, 768 [2d Dept 2008]). Additionally, in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmovant (see Pearson v Dix McBride, 63 AD3d 895 [2d Dep't 2009]; Brown v Outback Steakhouse, 39 AD3d 450, 451 [2d Dept 2007]).

Adverse Possession

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years (see Estate of Becker v Murtagh, 19 NY3d 75, 81 [2012]; Klein v. Aronshtein, 116 AD3d 670 [2d Dept 2014]).

Adverse possession of property for the statutory period vests title to the property in the adverse possessor (see Franza v Olin, 73 AD3d 44, 46 [4th Dept 2010]). Adverse possession for the statutory period of time cuts off the true owner's remedies and divests the owner of his or her estate (see Franza v Olin, 73 AD3d at 47, quoting Connell v Ellison, 86 AD2d 943, 944 [3d Dept 1982]). Thus, at the expiration of the statutory period, legal title to the land is transferred from the owner [*4]to the adverse possessor (see Franza v Olin, 73 AD3d at 47).

Moreover, "[a] party claiming adverse possession may establish possession for the statutory period by tacking the time that the party possessed the property onto the time that the party's predecessor adversely possessed the property" (Munroe v Cheyenne Realty, LLC, 131 AD3d 1141, 1142 [2d Dept 2015]; see Stroem v Plackis, 96 AD3d 1040, 1042-1043 [2d Dept 2012]). In order for tacking to be applicable, a party must show that its' predecessor "intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed" (Brand v Prince, 35 NY2d 634, 637 [1974]; Diaz v Mai Jin Yang, 148 AD3d 672 [2d Dept 2017]).

In 2008 the Legislature enacted changes to the provisions of the RPAPL with respect to claims of adverse possession. The 2008 amendments include "rewriting RPAPL 501 to include, for the first time, a statutory definition of the 'claim of right' element necessary to acquire title by adverse possession" (Hogan v Kelly, 86 AD3d 590, 591-592 [2d Dept 2011]). Pursuant to RPAPL 501(3), as amended, a claim of right is defined as "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be" (see also Diaz v Yang, 148 AD3d 672 [2d Dept 2017]).

Moreover, the 2008 amendments abrogate the common law of adverse possession and define as 'permissive and non-adverse' actions that, under the prior statutory law and long-standing principles of common law, were sufficient to obtain title by adverse possession (see Franza v Olin, 73 AD3d at 47). RPAPL 543 provides:

1. Notwithstanding any other provision of this article, the existence of de minimus [de minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.

2. Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse.

The 2008 amendments to RPAPL article 5 took effect on July 7, 2008, and apply to all claims filed on or after the effective date of the amendments (see Hartman v Goldman, 84 AD3d 734 [2d Dept 2011]). "The 2008 amendments to the adverse possession statutes contained in RPAPL article 5 [] are not applicable where the alleged adverse possessor's property right, as alleged, vested prior to the enactment of those amendments" (Estate of Vertley Clanton v City of New York, 153 AD3d 787, 788 [2d Dept 2017]; Pakula v Podell, 103 AD3d 864 [2d Dept 2013]). Where title has vested by adverse possession, it may not be disturbed retroactively by newly-enacted or amended legislation. RPAPL 501 (2), as amended, recognizes that title, not the right to commence an action to determine title, is obtained upon the expiration of the limitations period (see Franza v Olin, 73 AD3d at 47).

Defendants argue that plaintiffs cannot establish a claim of right or exclusive occupancy and have not satisfied the ten-year requirement. Plaintiffs argue that whether the 2008 amendments apply or whether the prior law applies, defendants are not entitled to summary judgment.

Here, the 2008 amendments to RPAPL article 5 are applicable to this action (see L 2008, ch 269) as the plaintiffs had not possessed the disputed property for 10 years when the statute was [*5]enacted and their purported adverse possession did not vest prior to the enactment of the statute in 2008 (see Reyes v Carroll, 137 AD3d 886 [2d Dept 2016]).

In Diaz v Mai Jin Yang, 148 AD3d 672, the plaintiff owned residential real property that was adjacent to the defendants' residential real property. A double garage and a driveway were located partially on the plaintiff's property and partially on the defendants' property. The plaintiff acquired her property by deed recorded on July 1, 2006. Plaintiff commenced an action in October 2012 pursuant to RPAPL article 15, seeking, among other things, a judgment declaring that she had acquired title and all rights, by adverse possession, to the defendants' portion of the double garage and the driveway. The plaintiff also asserted causes of action seeking to recover damages for use and occupancy, trespass, and slander of title. The defendants moved for summary judgment dismissing the complaint which was denied by the Supreme Court. The Second Department reversed and granted defendants' motion for summary judgment dismissing the complaint. The Court held that under the 2008 amendments, defendants demonstrated that the plaintiff's use of the disputed property was not hostile and under a claim of right, but was permissive. In opposition, plaintiff failed to raise an issue of fact that she possessed the property for ten years. Plaintiff also failed to submit evidence that the ten-year period could be satisfied by tacking on the periods of use by her predecessors.

Similarly, here, the defendants demonstrated prima facie entitlement to judgment as a matter of law dismissing the complaint. Defendants demonstrated that the plaintiffs' use of the disputed property was not under a claim of right or continuous for ten years. In this case, the plaintiffs' acts of clearing branches from the disputed land, mowing the lawn, or the existence of a shed on the disputed land are permissive and non-adverse (see RPAPL 543). The permissive use of the property at issue "negates the element of hostility necessary to establish a claim of adverse possession" (Chatsworth Realty 344 v Hudson Waterfront Co. A, 309 AD2d 567, 568 [1st Dept 2003]).

In opposition, plaintiffs failed to raise a triable issue of fact. Plaintiffs fail to raise an issue of fact that the 10-year period could be satisfied by tacking on the periods of adverse possession or use by their predecessors, since they offered no evidence that their predecessors intended to and actually turned over possession of the disputed property with the portion of the land included in the deed (see CSC Acquisition-NY, Inc. v 404 County Rd. 39A, Inc., 96 AD3d 986, 988 [2d Dept 2012]; Stroem v Plackis, 96 AD3d 1040, 1043 [2d Dept 2012]).

Accordingly, inasmuch as the plaintiffs have not acquired title to the disputed land by adverse possession, the defendants are entitled to summary judgment dismissing the remaining causes of action seeking to recover damages for trespass, nuisance, and injunctive relief (see Reyes v Carroll, 137 AD3d 886, 888-889 [2d Dept 2016]).

Leave to Amend the Complaint

As a general rule, leave to amend a pleading should be freely granted in the absence of prejudice to the opposing party and where the amendment may have merit (see Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 [2015]; CPLR 3025[b]; Assevero v Hamilton & Church Props., LLC, 154 AD3d 728 [2d Dept 2017]).

"[A] party seeking leave to amend a pleading need not make an evidentiary showing of merit, and leave to amend will be granted unless such insufficiency or lack of merit is clear and free from doubt [internal citations omitted]" (Stein v Doukas, 128 AD3d 803, 805 [2d Dept 2015]; see Lucido v Mancuso, 49 AD3d 220, 229 [2d Dept 2008]). The decision whether to grant leave to amend a complaint is committed to the sound discretion of the court (Davis v South Nassau Communities Hosp., 26 NY3d at 580; Castagne v Barouh, 249 AD2d 257 [2d Dept 1998]).

Plaintiffs seek leave to amend the complaint to add a cause of action pursuant to the doctrine of practical location. Under the doctrine, a practical location of a boundary line and an acquiescence therein for more than the statutory period governing adverse possession is conclusive of the location of such boundary (see Jakubowicz v Solomon, 107 AD3d 852 [2d Dept 2013]; Lounsbury v Yeomans, 139 AD3d 1230, 1231 [3d Dept 2016]; McMahon v Thornton, 69 AD3d 1157, 1160 [3d Dept 2010]). "[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is 'definitely and equally known, understood and settled' " (Jakubowicz v Solomon, 107 AD3d at 853, quoting McMahon v Thornton, 69 AD3d 1157, 1160 [3d Dept 2010] [internal quotation marks and citation omitted]).

Practical location of a boundary line, to be effectual, 'must be an act of the parties, either express or implied; and it must be mutual, so that both parties are equally affected by it. It must be definitely and equally known, understood and settled. If unknown, uncertain, or disputed, it cannot be a line practically located' []. Where land is unimproved and uncultivated, the mere running of a line through the woods, ex parte, by one of the owners, so long as such line is not settled upon and mutually adopted by the adjoining owners as a division line, is an immaterial fact. In such a case, until the adjoining owner shows his assent to it, it would amount to a mere expression of the individual opinion of the owner who ran the line (see Hadix v Schmelzer, 186 AD2d 239, 239-240 [2d Dept 1992] [internal quotation marks and citations omitted]).

The evidence here clearly establishes that at no time did the defendants acquiesce in the establishment of the chain link fence as the boundary line. Indeed, plaintiff Sharon Lorenz testified that in 2010, when plaintiffs were replacing the post and rail fence on their property, defendant Antonio Soares asked the company hired by plaintiffs to move the chain link fence back toward the defendants' property line. Mr. Soares confirmed this conversation. Thus, plaintiffs have failed to allege facts that would support that the chain link fence in question was mutually understood to reflect the boundary line and that such an understanding persisted for more than 10 years (see Hadix v Schmelzer, 186 AD2d 239; Chatsworth Realty 344 v Hudson Waterfront Co. A, 309 AD2d 567).

Conclusion

Based upon the foregoing, the defendants' motion for summary judgment dismissing the complaint is GRANTED (motion sequence #1) and the complaint is dismissed; and the plaintiffs' cross-move to amend the complaint to add a cause of action for precise location is DENIED (motion sequence #2).

Dated: White Plains, New York

January 10, 2018

HON. WILLIAM J. GIACOMO, J.S.C.