195 E76 LLC v. 197 EAST 76TH STREET LLC (2023)

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about April 11, 2022, which denied defendant's motion for summary judgment dismissing plaintiff's cause of action for trespass and on its counterclaim for a judgment declaring that it has obtained adverse possession of the disputed property, and to cancel the amended notice of pendency, unanimously affirmed, without costs.

Plaintiff and defendant own abutting property located in Manhattan.  Defendant acquired title to its property on September 22, 2008.  Plaintiff obtained ownership of its property in November 2012, at which point the parties were unaware of an encroachment.  In July 2013, plaintiff commissioned an architectural survey, which showed the fifth floor of defendant's building encroached on plaintiff's property by approximately one foot in width along the 25.8 feet of adjoining lot lines.  In June 2014, plaintiff's owners commenced an action seeking ejectment and recovery of damages for trespass.  Defendant asserted a counterclaim for declaratory judgment that defendant had acquired title to the disputed area by adverse possession.  The first action was ultimately dismissed in July 2019 by the Supreme Court pursuant to NYCRR 202.27 as the parties failed to appear for a status conference.

In March 2021, plaintiff commenced the instant action repleading its causes of action for ejectment and trespass while seeking the same relief initially sought.  Defendant moved for summary judgment on the grounds of adverse possession of the disputed area.  Supreme Court denied the majority of defendant's claim, except to the extent of severing and dismissing the ejectment claim.  Defendant appeals.

As a party seeking title by adverse possession, defendant is required to demonstrate, by clear and convincing evidence, that it possessed the disputed property in a matter that was adverse, under claim or right, actual, open, notorious, exclusive, and continuous for a period of 10 years (see RPAPL 501;  Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 159, 643 N.Y.S.2d 939, 666 N.E.2d 532 [1996]).  Moreover, pursuant to RPAPL 522, defendant must also demonstrate that there have been “acts sufficiently open to put a reasonably diligent owner on notice” or that the disputed property was “protected by a substantial enclosure” (see Houdek Real Estate Co., LLC v. Bayport Postal Realty, LLC, 180 A.D.3d 761, 762, 119 N.Y.S.3d 150 [2d Dept. 2020]).  Here, there are triable issues of fact as to whether the encroachment of defendant's property onto that of plaintiff's met these elements for a 10–year period prior to the commencement of this action.

The factual issues precluding a determination as to whether defendant has acquired the disputed property by adverse possession also preclude granting defendant summary judgment dismissing plaintiff's claim for trespass.  In light of the foregoing, there is no basis to cancel the notice of pendency.