KLEIN v. LOWY (1999)

In an action for ejectment, the defendants appeal (1) from an order of the Supreme Court, Kings County (Dowd, J.), dated July 22, 1998, which, inter alia, granted the plaintiffs' motion for summary judgment and directed them to deliver possession of the subject real property to the plaintiffs, and (2) from so much of an order of the same court, dated October 7, 1998, as denied that branch of their motion which was for renewal of the prior motion.

ORDERED that the order dated July 22, 1998, is affirmed;  and it is further,

ORDERED that the order dated October 7, 1998, is affirmed insofar as appealed from;  and it is further,

ORDERED that the plaintiffs are awarded one bill of costs.

 The plaintiffs made out a prima facie case for summary judgment and the defendants failed to demonstrate the existence of any material issues of fact in support of their counterclaim for adverse possession (see, Ley v. Innis, 149 A.D.2d 366, 539 N.Y.S.2d 942).  “When, as here, permission can be implied from the beginning, adverse possession will not arise until there is a distinct assertion of a right hostile to the owner” (Congregation Yetev Lev D'Satmar v. 26 Adar N.B. Corp., 192 A.D.2d 501, 503, 596 N.Y.S.2d 435).   Here, the hostile act occurred when the defendants ceased paying rent in or about December 1995.   Thus, the defendants are unable to prove the element of hostility for the requisite time period (see, RPAPL 531;  Risi v. Interboro Ind. Parks, 99 A.D.2d 466, 470 N.Y.S.2d 174).

The defendants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.