SUGARMAN v. East River Housing Corp., Defendant. (2008)

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about June 11, 2007, which denied plaintiff's motion for a declaratory judgment and granted defendant Malone's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff moved into the Manhattan cooperative apartment with her late husband Howard in 1984, when the record owner of the shares was Howard's father, Jack. Howard died in 1990.   When Jack died in 1995, he left the shares to his daughter (Howard's sister), who died a year later, leaving the property to her husband (defendant Malone).   Malone asserted his interest in the premises nine years later, prompting plaintiff to bring this action in 2005, seeking a declaration that she is the rightful owner of the shares through adverse possession.

 Any presumption of hostility to which plaintiff was entitled was defeated by her offer to purchase the shares from Malone in 1998, during the statutory period (see Albright v. Beesimer, 288 A.D.2d 577, 578, 733 N.Y.S.2d 251 [2001];  see also Manhattan School of Music v. Solow, 175 A.D.2d 106, 571 N.Y.S.2d 958 [1991], lv. denied 79 N.Y.2d 820, 580 N.Y.S.2d 191, 588 N.E.2d 89 [1991] ).   Although Malone was not the record owner at the time of that offer, he had by that time acquired title by devise, and thus had an ownership interest.   Moreover, plaintiff's concession that she was initially permitted to possess the premises because of her relationship by marriage, which was confirmed by Malone, was sufficient to rebut any presumption of hostility, and she has failed to raise an issue of fact in this regard (see e.g. Wechsler v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 856, 860, 597 N.Y.S.2d 507 [1993], lv. denied 82 N.Y.2d 656, 602 N.Y.S.2d 805, 622 N.E.2d 306 [1993] ).   Plaintiff's reference to conversations she had with the deceased prior owners was directly contradicted by her sworn statements submitted on prior motions, and thus cannot defeat Malone's cross motion for summary judgment (see Harty v. Lenci, 294 A.D.2d 296, 298, 743 N.Y.S.2d 97 [2002] ).

Plaintiff's contention that Malone is not the proper party and does not have standing is unpreserved, and we decline to review it (see AFCO Credit Corp. v. Zurich Am. Ins. Co., 45 A.D.3d 441, 442, 846 N.Y.S.2d 131 [2007] ).   Were to consider it on the merits, we would reject it.