GENESEE COUNTY FISH AND GAME PROTECTIVE ASSOCIATION INC v. SULLIVAN (2026)

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs.  

 Plaintiff, a conservation association incorporated in 1909, owns a 200–acre parcel of land in Genesee County.  The land provides recreational opportunities for plaintiff's approximately 1500 members, with 21 of those members residing permanently on plaintiff's property.  Defendant Capri Dix is a former member of plaintiff association and owns a 45–acre property to the east of plaintiff's parcel, which she and her husband, defendant William Dix, use for recreation.  The two parcels are divided by Godfrey's Pond Road:  plaintiff has owned the western half of that road since 1932, and defendants and their predecessors in interest obtained title to the eastern half of the road at least as early as 1949.  Godfrey's Pond Road provides “the only access to the property for plaintiff's members, emergency services vehicles, and delivery services” (239 A.D.3d 1245, 1246, 236 N.Y.S.3d 804 [4th Dept. 2025] ).

In 2021, a dispute arose between the parties over ownership and use of the road.  After “several provocative actions primarily taken by defendants and members of their family, including blocking the eastern half of the road with tree trunks” (id. at 1247, 236 N.Y.S.3d 804), and an encounter between members of the association and defendants requiring police intervention, plaintiff commenced this action seeking, as relevant here, a declaration of title through adverse possession to the eastern portion of the disputed road and subsequently moved for summary judgment on those claims.  Supreme Court granted plaintiff's motion, holding that plaintiff had met its burden of establishing title by adverse possession and defendants had failed to raise any issue of fact.  A divided Appellate Division affirmed (see id.), and defendants appeal as of right (see CPLR 5601[a] ).

We agree with the courts below that, on the unique facts of this case, plaintiff was entitled to summary judgment.  Plaintiff's proof on each of the required elements was sufficient to establish title by adverse possession (see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012] ), and in response defendants raised no triable issue of fact.  Among other evidence establishing hostile and exclusive possession of the road, plaintiff's submissions demonstrated that “it was only plaintiff that had plowed, patched, paved, repaired, and otherwise maintained the entire road for decades” (239 A.D.3d at 1250, 236 N.Y.S.3d 804;  see Becker, 19 N.Y.3d at 82-83, 945 N.Y.S.2d 196, 968 N.E.2d 433).  Although adverse possession is “not a favored method of procuring title” (Belotti v. Bickhardt, 228 N.Y. 296, 308, 127 N.E. 239 [1920] ), it is a “necessary means of clearing disputed titles” and serves an “important policy of repose” (Golobe v. Mielnicki, 44 N.Y.3d 86, 98, 241 N.Y.S.3d 878, 268 N.E.3d 982 [2025] [internal quotation marks omitted] ).  It is time for repose here.

The genesis of this litigation is a property dispute between neighbors, with plaintiff now claiming title by adverse possession to defendants’ land.  The legal standards are well established and weigh heavily against acquisition of title on plaintiff's summary judgment motion.  Title by adverse possession is strongly disfavored and summary judgment is a drastic remedy, requiring that plaintiff establish its entitlement to the property as a matter of law and that no factual issue relevant to its claim remains.  Plaintiff failed to satisfy its burden, because the record is replete with outstanding factual and credibility questions as to whether plaintiff exclusively used the disputed property without defendants’ consent.  Those questions may only be resolved by the trier of fact.  Therefore, I would reverse and remit for a trial on the merits.

I.

Plaintiff Genesee County Fish and Game Protective Association and defendants Capri and William Dix are neighbors who own abutting property.  For decades, plaintiff had a friendly, cooperative, and mutually beneficial relationship with defendants and their family members and predecessors in interest.  For most of those years, they were more than neighbors, as defendant Capri Dix and several of her family members and predecessors in interest were associational members of plaintiff, including her mother, grandmother, great aunt, and great-grandfather.

The East/West boundary line between plaintiff's and defendants’ respective parcels runs down the center of a private, two-lane road, with plaintiff owning one half of the road—i.e., the western lane for southbound traffic—and approximately 200 acres of land that lie to the west of the dividing line, and defendants owning the remaining half of the road—i.e., the eastern lane for northbound traffic—and around 45 acres that lie to the east of the property line.  The use and ownership of this road is a source of acrimony between the parties and has turned once friendly neighbors into adversaries.  It is undisputed that defendants had a falling out with plaintiff and its governing representatives based on defendants’ perception that plaintiff's members were improperly entering defendants’ land.  When the parties could not reach an amicable resolution, and after defendants rejected plaintiff's offer to purchase the eastern half of the road, plaintiff sued.  Plaintiff asserted a cause of action for title by adverse possession to the eastern portion of the road and sought a judicial determination that it is the fee simple owner of the entire road.  In the alternative, plaintiff asserted a cause of action for a prescriptive easement defining plaintiff's legally permissible use of defendants’ eastern half of the road.  Defendants’ answer responded in kind, asserting counterclaims for title to the disputed property and alleged trespass by plaintiff's members on the eastern half of the road and other parts of defendants’ land.

Plaintiff moved for summary judgment, demanding title based on its alleged adverse possession of the eastern side of the road for the mandatory statutory period.¹  In support, plaintiff submitted affidavits from two of its longtime members stating that plaintiff's members have used the road on a daily basis for decades and to their knowledge plaintiff had never received permission from defendants’ predecessors in interest to use the road.  Plaintiff's members also asserted that for many years, plaintiff alone patched, paved, repaired, and otherwise maintained the road.  On this basis, plaintiff argued in the motion that it had satisfied all the required elements of adverse possession as a matter of law.

Defendants opposed and cross-moved for summary judgment to dismiss the complaint and quiet title in their names to the eastern portion of the road.  In the alternative, defendants argued that there were triable issues of fact precluding a grant of summary judgment in favor of plaintiff—namely, as relevant here, whether plaintiff's use of the disputed property was permissive.  Defendants relied upon their deposition testimony and that of plaintiff's members to establish the road's former use as an old, shared “farm lane”;  the history of friendly, neighborly, and accommodating relations between plaintiff and defendants’ predecessors in interest;  and defendants’ and their predecessors’ frequent use of the entire road, including the disputed portion, prior to the instant dispute.  Supreme Court granted plaintiff's motion for summary judgment and denied defendant's cross-motion.

The Appellate Division affirmed in a 3–2 decision (239 A.D.3d 1245, 1246, 236 N.Y.S.3d 804 [4th Dept. 2025] ).  The majority concluded that plaintiff met its burden by establishing actual, open, notorious, exclusive, hostile, and continuous use and occupation of the entire road for the statutory period, and that defendants failed to demonstrate the existence of triable issues of fact to overcome summary judgment (id. at 1248-1257, 236 N.Y.S.3d 804).  Two Justices dissented, and would have denied plaintiff's motion on the ground that the record presented triable issues of fact regarding whether plaintiff's use was hostile and exclusive, as required by law (id. at 1257-1259, 236 N.Y.S.3d 804 [DelConte & Hannah, JJ., dissenting] ).

I agree with the well-reasoned dissent.  Plaintiff's motion for summary judgment should have been denied, because plaintiff failed to establish the absence of material triable issues of fact as to whether its use of the disputed portion of the road was exclusive and adverse to defendants’ title.

II.

The legal standards applicable to this appeal are well-established and impose a heavy burden on plaintiff to demonstrate its lawful entitlement to the disputed property.  Our jurisprudence on summary judgment and adverse possession both weigh heavily against plaintiff.

A.

“On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” (Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] [internal quotation marks omitted] ) and “every available inference must be drawn in the [non-moving party's] favor” (De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ).  Summary judgment is a “drastic remedy” (Vega, 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240) and should be granted only where the movant has satisfied its “burden to establish a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 [2014] [internal quotation marks omitted];  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Golobe v. Mielnicki, 44 N.Y.3d 86, 92, 241 N.Y.S.3d 878, 268 N.E.3d 982 [2025] ).  “If the moving party fails to meet this initial burden, summary judgment must be denied regardless of the sufficiency of the opposing papers” (Voss, 22 N.Y.3d at 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 [internal quotation marks omitted] ).  In such circumstances, “the burden does not shift to the non[-]moving party to persuade the court against summary judgment” (id.).

Accordingly, for a court “[t]o grant summary judgment[,] it must clearly appear that no material and triable issue of fact is presented” (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ).  “This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable (id. [internal quotation marks and citations omitted];  see Vega, 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240).  “Summary judgment does not deny the parties a trial,” rather, it “ascertains that there is nothing to try” (Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, 182, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] [internal quotation marks omitted] ).  Indeed, this Court has stated that “issue-finding, rather than issue-determination, is the key to the procedure” on a motion for summary judgment (Sillman, 3 N.Y.2d at 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [internal quotation marks omitted] ).  Therefore, “[u]nder the summary judgment standard, even if the jury at a trial could, or likely would, decline to draw inferences favorable to the [non-moving party] on [the disputed] issues ․, the court on a summary judgment motion must [nevertheless] indulge all available inferences” in favor of the non-moving party (De Lourdes Torres, 26 N.Y.3d at 763, 47 N.E.3d 747).

B.

Adverse possession serves as a legal doctrinal basis for granting fee simple title to a non-owner who has used and occupied the property in question in a manner adverse to the rights of the owner for the prescribed statutory period (see 1 Warren's Weed New York Real Property, Adverse Possession, § 5.02 [Aug.2026] ).  The owner's title is extinguished as a matter of law, and a new, lawful title is declared in the adverse possessor (see Brand v. Prince, 35 N.Y.2d 634, 636, 364 N.Y.S.2d 826, 324 N.E.2d 314 [1974] [“The necessary effect, by barring the real owner's right to recover (their) property is, of course, to extinguish (their) title and make absolute the wrongful possessor's”];  Connell v. Ellison, 86 A.D.2d 943, 944, 448 N.Y.S.2d 580 [3d Dept. 1982], affd 58 N.Y.2d 869, 871, 460 N.Y.S.2d 528, 447 N.E.2d 76 [1983] [“(I)t is well settled that adverse possession for the requisite period of time not only cuts off the true owner's remedies but also divests (them) of (their) estate”] ).  The justification for legally divesting an owner of title to the benefit of a non-owner is to incentivize the use of property, rather than allowing an owner to sit on their rights, and to provide finality to land title (see Herbert Hovenkamp & Sheldon F. Kurtz, Principles of Property Law 57 [6th ed 2005] ) [purposes of adverse possession statutes are to “suppress dormant claims, to quiet titles, to require diligence on the part of the owner and penalize those who sit on their rights too long, and to reward the economic activities of a possessor who is utilizing land more efficiently than the true owner is”];  Brand, 35 N.Y.3d at 636, 135 N.Y.S.3d 48, 159 N.E.3d 772 [“Acquisition of title by adverse possession derives historically from the early English statutes limiting actions to recover land.  Truly [s]tatutes of [l]imitations, their purpose was for quieting of men's estates, and avoiding of suits” (internal quotation marks omitted) ] ).

Unsurprisingly, acquisition of title by adverse possession is highly disfavored under our law because of the doctrine's harsh consequences—extinguishing the owner's property rights, divesting them of their estate, and transferring legal title to a mere possessor without the record owner's consent, contrary to the law's ordinary preference for voluntary transfers of property (see Estate of Becker v Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012];  Dan M. Blumenthal, Prac Commentaries, McKinney's Cons Laws of NY, RPAPL § 501;  see also Yun–Chien Chang, Adverse Possession Laws in 203 Jurisdictions:  Proposals for Reform, 43 U Pa J Intl L 373, 376 [2022] [adverse possession “is exceptional in private law because ownership changes hands without the consent of the erstwhile owners,” a “practice (that) goes against the general policy in favor of voluntary transactions”] ).  To that end, the Legislature has intentionally made it difficult to acquire title by adverse possession, including by adopting a mandatory 10–year period of adverse use and occupation—which terminates if the owner consents to use and restarts only if their consent is repudiated—and by implementing rigid standards for establishing the statutory elements (see RPAPL article 5).  Still, “[a]dverse possession, although not a favored method of procuring title, is a recognized one” (Walling v. Przybylo, 7 N.Y.3d 228, 233, 818 N.Y.S.2d 816, 851 N.E.2d 1167 [2006] [internal quotation marks omitted], quoting Belotti v. Bickhardt, 228 N.Y. 296, 308, 127 N.E. 239 [1920] ).  “[W]hen [it] is carefully and fully proven” (id. [internal quotation marks omitted] ), it is “a necessary means of clearing disputed titles and ensuring that title is not permanently encumbered” (Golobe, 44 N.Y.3d at 97–98, 241 N.Y.S.3d 878, 268 N.E.3d 982 [internal quotation marks omitted], quoting Belotti, 228 N.Y. at 308, 127 N.E. 239, and citing Brand, 35 N.Y.2d at 636, 364 N.Y.S.2d 826, 324 N.E.2d 314).

“To establish a claim of adverse possession,” the claimant must demonstrate that “the occupation of the property [was] (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to [the possessor] ), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years)” (Becker, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433;  see Walling, 7 N.Y.3d at 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167 [2006] ).  Since “the acquisition of title by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence” (Becker, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433, citing Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 159, 643 N.Y.S.2d 939, 666 N.E.2d 532 [1996] ).

“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, 7 N.Y.3d at 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167 [internal quotation marks omitted], quoting Monnot v. Murphy, 207 N.Y. 240, 245, 100 N.E. 742 [1913] ).  “Reduced to its essentials” (Brand, 35 N.Y.2d at 636, 364 N.Y.S.2d 826, 324 N.E.2d 314), “[t]he character of the possession must be such that it would give the [real] owner a cause of action in ejectment against the occupier” throughout the statutory period (Becker, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [internal quotation marks and brackets omitted], quoting Brand, 35 N.Y.2d at 636, 364 N.Y.S.2d 826, 324 N.E.2d 314).

“In 2008, the adverse possession statute was amended in its entirety to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights” (Becker, 19 N.Y.3d at 81 n.4, 945 N.Y.S.2d 196, 968 N.E.2d 433 [internal citations omitted] ).  “Among the changes, the Legislature defined the terms ‘adverse possessor,’ ‘acquisition of title,’ and ‘claim of right’ (RPAPL 501), and altered the requirements that must be made out where the adverse possession claim is not based on a written instrument (RPAPL 522)” (id.).  The amendments reflect a legislative intent to further restrict adverse possession and to avoid archaic disseisin of property title by a wrongful taking by a mere possessor (see Senate Introducer's Mem in Support, Bill Jacket, L 2008, ch 269 at 8 [stated purpose of 2008 amendments was to annul caselaw from this Court believed to “encourage the offensive use of adverse possession”] ).  Put succinctly, the “legislative goal” of the 2008 amendments was to “bar[ ] ‘bad faith’ adverse possession claims by requiring an adverse possessor to have a reasonable basis for believing that the property belongs to [them]” (Governor's Approval Mem, Bill Jacket, L 2008, ch 269 at 5).

III.

Applying those standards here, against the backdrop of the legislative aversion to acquisition of title by adverse possession, plaintiff failed to meet its heavy burden of establishing that there were no relevant questions of fact as to all of the statutory elements and thus summary judgment in its favor is not warranted as a matter of law.  As the record shows, plaintiff failed to demonstrate by clear and convincing evidence its hostile and exclusive use and possession of the eastern half of the road for the entire statutory period.

As to the dispositive issues here, I agree with defendants that the record presents a triable issue of fact as to whether defendants’ predecessors in interest gave plaintiff express permission to use the disputed portion of the road, or alternatively, whether there was a close, neighborly, and accommodating relationship between plaintiff and defendants’ predecessors in interest that implies permissive use of the disputed property by plaintiff and thus defeats the usual presumption of hostility (see Becker, 19 N.Y.3d at 81–82, 945 N.Y.S.2d 196, 968 N.E.2d 433, citing City of Tonawanda v. Ellicott Cr. Homeowners Assoc., 86 A.D.2d 118, 124, 449 N.Y.S.2d 116 [4th Dept 1982, Simons & Hancock, JJ., on panel], and Hassinger v. Kline, 91 A.D.2d 988, 989, 457 N.Y.S.2d 847 [2d Dept. 1983] ).  Defendants are correct that if plaintiff's use of the eastern half of the road was merely permissive, plaintiff cannot establish the elements of hostility and exclusivity (see id. at 82–83, 945 N.Y.S.2d 196, 968 N.E.2d 433;  Pirman v. Confer, 273 N.Y. 357, 363, 7 N.E.2d 262 [1937] ).²  Whether plaintiff's use was permissive must be resolved here by the finder of fact, not by a court on the summary judgment motion.

A.

Turning first to whether possession is hostile to the owner's interests, “[a] party claiming title by adverse possession is not required to show enmity or specific acts of hostility in order to establish the element of hostility” (Becker, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [internal quotation marks omitted] ).  Rather, “[t]his element is satisfied where [the party] asserts a right to the property that is ‘adverse to the title owner and also in opposition to the rights of the true owner’ ” (id., quoting Walling, 7 N.Y.3d at 232–233, 818 N.Y.S.2d 816, 851 N.E.2d 1167).  In other words, “[p]ossession is hostile when it constitutes an actual invasion of or infringement upon the owner's rights” (Parklands E., LLC v. Spangenberg, 174 A.D.3d 1374, 1376, 107 N.Y.S.3d 212 [4th Dept. 2019] [internal quotation marks omitted] ).  Indeed, “[t]he purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the unequivocal acts of the usurper” (id. [internal quotation marks omitted] ).

Possession cannot be considered hostile when there is evidence that the possessor sought or received permission from the owner to use the property, or when permissive use can be inferred under the circumstances (Becker, 19 N.Y.3d at 82, 945 N.Y.S.2d 196, 968 N.E.2d 433, quoting City of Tonawanda, 86 A.D.2d at 124, 449 N.Y.S.2d 116).  Put another way, “permissive use may arise directly from the owner's grant of permission, or may be implied in the absence of express permission by the parties’ actions or ․ from the cordial nature of their relationship” (Bergmann v. Spallane, 129 A.D.3d 1193, 1198, 10 N.Y.S.3d 670 [3d Dept. 2015] [internal citation omitted] ).

Conversely, “[a] rebuttable presumption of hostility arises from possession [of the disputed property] accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another” (Becker, 19 N.Y.3d at 81–82, 945 N.Y.S.2d 196, 968 N.E.2d 433, citing Monnot, 207 N.Y. at 244, 100 N.E. 742.  In other words, “[w]here all the [other] elements of adverse possession are established,” hostile possession may be presumed, and “the burden shifts to the record owner to produce evidence rebutting the presumption” (Levy v. Kurpil, 168 A.D.2d 881, 883, 564 N.Y.S.2d 556 [3d Dept. 1990] ).  However, “where there is a close and cooperative relationship between the record owner and the [party] claiming title through adverse possession, the presumption of hostility may not apply” (Becker, 19 N.Y.3d at 82, 945 N.Y.S.2d 196, 968 N.E.2d 433, citing Hassinger, 91 A.D.2d at 989, 457 N.Y.S.2d 847 [“(T)he neighborly relationship between plaintiffs, their predecessors in title(,) and defendants’ predecessors in title( ) created an implication that the use of the disputed roadway was permissive”] ).

Thus, where the circumstances of a case imply permissive use, “in order to establish the hostility element, the party asserting the adverse possession claim must come forward with affirmative facts to establish that the use of the property was under a claim of right and adverse to the interests of the true owner[ ]” (id. [internal quotation marks and brackets omitted] ).  “Generally, the question of implied permission is one for the factfinder to resolve,” and summary judgment should not be granted (Barra v. Norfolk S. Ry. Co., 75 A.D.3d 821, 824, 907 N.Y.S.2d 70 [3d Dept. 2010, Stein, J., on panel], citing Country–Wide Ins. Co. v. National R.R. Passenger Corp., 6 N.Y.3d 172, 178-179, 811 N.Y.S.2d 302, 844 N.E.2d 756 [2006] [explaining, in another context, that “where there is evidence suggesting ․ implied permission, the issue of consent should go to a jury”];  see also Corigliano v. Sunick, 56 A.D.3d 1121, 1122, 867 N.Y.S.2d 588 [4th Dept. 2008] [summary judgment was “inappropriate” on the “hostile and under a claim of right” element due to an “issue of fact” as to whether the possessor “entered the disputed property without ․ permission”] ).

Significantly, if the record indicates that the possessor's initial use or “entry upon [the disputed] land [was] by permission or under some right or authority derived from the owner, [then] adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner” (Hinkley v. State, 234 N.Y. 309, 316, 137 N.E. 599 [1922] ).  Accordingly, “[w]here permission can be implied from the beginning, no adverse user may arise until there is an assertion of a hostile right which is made known to the property owner” (Hassinger, 91 A.D.2d at 989, 457 N.Y.S.2d 847, citing Moore v. Day, 235 N.Y. 554, 139 N.E. 732 [1923] ).  In such circumstances, the 10–year statutory period for adverse possession will not start to run until the permission is rescinded or the possessor commences an attitude of hostility (see City of Tonawanda, 86 A.D.2d at 124, 449 N.Y.S.2d 116 [“(A)bsent a clear, unequivocal, open repudiation of permission(,) the user is not transformed into a hostile one”] ).

Here, the record demonstrates a friendly, neighborly, and cooperative relationship between plaintiff and its associational members and defendants and their predecessors in interest, spanning decades, which implies that plaintiff's use of the disputed eastern portion of the roadway was permissive.³  Indeed, defendant Capri Dix and many of her predecessors in interest and past and current family members were associational members of plaintiff themselves, and would use the road to access plaintiff's property, coming and going as they pleased.  Capri Dix's grandmother, great aunt, and great-grandmother would regularly ride horses on the road and on trails within plaintiff's property, and Capri's great-grandfather, Vincent Frens, was described by plaintiff as an extremely close friend of many of plaintiff's members before his passing.  Additionally, prior to the instant dispute, Capri often used the entire road to access her approximately 45–acre parcel to the east of the property line, which she and her family members now primarily use for recreation.

There is also some evidence in the record that Capri's great-grandfather, Vincent Frens, gave plaintiff's members permission to use the eastern half of the road, although several of plaintiff's long-time members deny being aware that plaintiff did not own the entire road until this dispute arose.  The veracity of these assertions goes directly to whether plaintiff's actions were hostile to title of defendants and their predecessors in interest.  The record further reveals that Frens allowed plaintiff to take gravel from a pit on his property to pave and patch the road, which, as noted, was mutually used by plaintiff's members and defendants and their predecessors in interest.  Frens also permitted plaintiff's members to hunt on his property, indicative of their close, neighborly ties during his lifetime.  Thus, the record, as it stands, is sufficient to create, at a minimum, a question of fact as to whether plaintiff and its members used the eastern half of the road with permission from defendants’ predecessors in interest.

B.

Plaintiff also failed to establish as a matter of law its exclusive use of the property against the interests of defendants and their predecessors.  “To establish the ‘exclusivity’ element, the adverse possessor must alone care for or improve the disputed property as if it were [their] own” (Becker, 19 N.Y.3d at 83, 945 N.Y.S.2d 196, 968 N.E.2d 433).  The focus of the inquiry is “on whether the party claiming title by adverse possession exercised exclusive possession and control of the property” (id.).  “When the party claiming adverse possession permits others to use the property, exclusivity exists where the claimant's use of the property is ‘separate and exclusive from the general use’ ” (id., quoting Pirman v. Confer, 273 N.Y. 357, 363, 7 N.E.2d 262 [1937];  see Levy, 168 A.D.2d at 883, 564 N.Y.S.2d 556 [“(Claimant's) use of the disputed property was ․ exclusive to the extent that although others used it, (claimant's) right to use it was not dependent upon the rights of others to do so and the land was not open to public use”] ).  “Thus, allowing others to use the property does not necessarily negate ‘exclusivity’ ” (Becker, 19 N.Y.3d at 83, 945 N.Y.S.2d 196, 968 N.E.2d 433).  However, the element of exclusivity “is not established ‘where [a claimant's] use is in connection with the use of the owner and the general public” (id., quoting Pirman, 273 N.Y. at 363, 7 N.E.2d 262).  Thus, exclusivity is negated if the record demonstrates that the claimant's use “was with [the owner's] permission rather than being hostile” (Levy, 168 A.D.2d at 883, 564 N.Y.S.2d 556).

Although the record here indicates that plaintiff used the eastern half of the road extensively and more often than defendants, and that plaintiff maintained, repaired, paved, and plowed the road for decades, those facts alone are insufficient to establish the lack of a material issue of fact as to plaintiff's exclusive use and possession for the entire statutory period.  As discussed, the record shows that defendants and their predecessors in interest used the entirety of the road countless times before plaintiff filed its complaint.  Furthermore, there is a question of fact as to whether defendants and their predecessors in interest consented to plaintiff's and its associational members’ use of the disputed half of the road.  That question cannot be resolved on summary judgment.

IV.

Plaintiff failed to satisfy its burden on summary judgment because there were material triable issues of fact as to whether its use of the eastern portion of the road was hostile and exclusive for the entire statutory period.  The majority misapplies the particularly heavy burden that a plaintiff bears on a motion for summary judgment.  I agree with the majority that repose is a worthy goal (see majority op at ––––).  However, repose is not an appropriate justification to excuse plaintiff's failure to establish by clear and convincing evidence—leaving no material triable question of fact unresolved—its claim to title by adverse possession based on a summary judgment record of mutual use and enjoyment of the property by these neighbors and their predecessors.  It would be a different case without this close, cooperative, and long-standing associational relationship between the parties and their predecessors in interest, but those ties cannot be disentangled on a summary judgment motion.  Thus, extinguishment of defendants’ title to their property by adverse possession on summary judgment was error.

I dissent.

Order affirmed, with costs, in a memorandum.

FOOTNOTES

1.   Plaintiff did not move for summary judgment on its prescriptive easement claim.  A prescriptive easement confers limited rights of use rather than title to another's property, as is the case with a successful claim of adverse possession (see 1 Warren's Weed New York Real Property, Adverse Possession, § 5.02 [Aug.2026] ).  Because plaintiff chose to seek title rather than a right of use in the eastern half of the road, I have no occasion to consider the merits of its prescriptive easement claim.

2.   Defendants further argue that the 10–year statutory period for adverse possession did not begin until at least 2021, due to the absence of hostility and exclusivity prior to that time.  On this appeal, I do not consider whether the pre- or post–2008 version of RPAPL article 5 applies or whether one version imposes a heavier burden of production and persuasion on the party seeking title by adverse possession.  Plaintiff failed to establish an absence of material triable facts on the elements of hostility and exclusivity, regardless of the controlling statutory language.

3.   There is no evidence that this cordial, neighborly relationship ended before 2021, when defendants took action to prevent plaintiff and its members from using the disputed eastern half of the road and alerted plaintiff to their ownership of that half, based on a survey they had obtained.