LOVELESS FAMILY TRUST NEIL LOVELESS PAULA MANNING PLAINTIFFS RESPONDENTS APPELLANTS ET AL PLAINTIFF v. PAUL KOENIG DEFENDANT APPELLANT RESPONDENT (2010)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Supreme Court, Wayne County (Maurice E. Strobridge, J.H.O.), entered July 20, 2009.   The order, among other things, granted plaintiffs' motion to dismiss certain affirmative defenses.

It is hereby ORDERED that said appeal is unanimously dismissed and the order is otherwise affirmed without costs.

With respect to defendant's appeal, we conclude that the court properly denied defendant's cross motion.  “In a tenancy-in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner.   Consequently, nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property” (Myers v. Bartholomew, 91 N.Y.2d 630, 632-633).   As the Court further wrote in Myers, “a tenant-in-common seeking to assert a successful claim of adverse possession is required to show more than mere possession;  the cotenant must also commit acts constituting ouster” (id. at 633;  see Trevisano v. Giordano, 202 A.D.2d 1071, appeal dismissed 84 N.Y.2d 848;  Perkins v. Volpe, 146 A.D.2d 617, lv dismissed 74 N.Y.2d 791).   In the absence of ouster, “a cotenant may begin to hold adversely only after 10 years of exclusive possession” (Myers, 91 N.Y.2d at 634-635;  see RPAPL former 541).

Patricia L. Morgan

Clerk of the Court