JENNINGS v. FISHER (1999)

Appeal from an order of the Supreme Court (Bradley, J.), entered July 13, 1998 in Ulster County, which, inter alia, denied plaintiff's motion for summary judgment.

This case involves a property dispute with respect to a strip of land, approximately 20 feet wide, which runs from property owned by defendants along the westerly side of property owned by plaintiff to Broadhead Road in the Town of Olive, Ulster County.   In February 1997, plaintiff commenced this action seeking title by way of a declaratory judgment claiming that her chain of title proves that she is the rightful owner, or in the alternative, ownership by adverse possession pursuant to RPAPL 521 and 522.   Plaintiff also brought claims in private nuisance, encroachment, trespass and cutting or carrying off trees or timber;  she also sought a preliminary injunction directing the removal of a fence and prohibiting further trespass.   Defendants answered and asserted defenses based upon failure to state a cause of action and Statute of Limitations.   After joinder of issue, plaintiff moved for summary judgment on her alternative claims of title and all of her remaining claims.   Defendants opposed plaintiff's motion and cross-moved for summary judgment dismissing plaintiff's claim of title and adverse possession causes of action.   Supreme Court denied plaintiff's motion and granted defendants' cross motion in part, finding that defendants' deed clearly shows that they are the chain of title owners of the disputed strip and, therefore, dismissed plaintiff's chain of title cause of action.   Plaintiff now appeals.¹

 Initially, we conclude that Supreme Court properly denied plaintiff's summary judgment motion in relation to her adverse possession cause of action.   It is well settled that in order to establish title by adverse possession, clear and convincing evidence of actual, adverse, open and notorious, continued and uninterrupted use of the disputed property for a period of 10 years must be shown (see, Winchell v. Middleton, 226 A.D.2d 1009, 1009, 641 N.Y.S.2d 208;  Pickett v. Whipple, 216 A.D.2d 833, 834, 629 N.Y.S.2d 489).   Here, plaintiff claims that she occupied and maintained the strip continuously since moving onto her deeded property in January 1980 by maintaining a storage shed, regularly cultivating the soil, maintaining a picnic table and a clothesline and contracting for the construction of a drywell which extended onto a portion of the strip.   Additionally, plaintiff provided evidence from defendants' predecessor in title, who claims that during the entire time she lived on the property adjacent to the property deeded to plaintiff, she thought the disputed property was part of plaintiff's parcel and always sought permission from plaintiff before entering it.   In response, defendants assert that, inter alia, the subject property was not cultivated or improved but was left instead in its natural state and that the picnic table which plaintiff relies upon to establish her claim of adverse use is dilapidated and unfit for any reasonable use.   We agree with Supreme Court that numerous issues of fact exist thereby precluding summary judgment on plaintiff's claim of adverse possession.

 Next, we conclude that Supreme Court properly denied plaintiff's motion for summary judgment on her private nuisance cause of action.  “The elements of a private nuisance cause of action are ‘(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act’ ” (Futerfas v. Shultis, 209 A.D.2d 761, 763, 618 N.Y.S.2d 127, quoting Copart Indus. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 570, 394 N.Y.S.2d 169, 362 N.E.2d 968).   Here, the record reveals that defendants constructed a chicken wire fence along the boundary between the disputed property and plaintiff's land which causes the fence to run about 16 inches from the rear of plaintiff's deck, fewer than six feet from the kitchen and guest bedroom window, about 14 feet from plaintiff's living room and bedroom windows and also runs underneath the overhang of her shed.   While plaintiff claims that the building of the fence, along with other conduct by defendants, has affected her and her family's privacy, she has failed to offer any proof that this fence directly prevents her from using and enjoying her land;  nor has plaintiff yet proved that any of the land behind the fence is owned by her.

 Finally, we conclude that Supreme Court properly denied plaintiff's motion seeking a preliminary injunction to enjoin defendants from maintaining the fence along the subject property and occupying the subject property.   A preliminary injunction may be granted only where a movant has established the likelihood of ultimate success on the merits, irreparable injury and a balancing of equities in his or her favor (see, Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862, 552 N.Y.S.2d 918, 552 N.E.2d 166;  Walsh v. St. Mary's Church, 248 A.D.2d 792, 793, 670 N.Y.S.2d 220).   Plaintiff has failed to show that she will be irreparably harmed by the denial of her requested relief.   While plaintiff is unable to use the subject property in the way she allegedly had used it in the past, she has offered no evidence that would indicate that she will be injured irreparably during the pendency of this action.

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Notably, plaintiff does not challenge in this appeal Supreme Court's dismissal of her cause of action claiming ownership by chain of title;  that issue is hereby deemed abandoned (see, Transamerica Commercial Fin. Corp. v. Matthews of Scotia, 178 A.D.2d 691, 692 n. 1, 576 N.Y.S.2d 939).

SPAIN, J.

MIKOLL, J.P., CREW III, YESAWICH Jr. and CARPINELLO, JJ., concur.