12049 FLATLANDS AVE CORP v. RESEARCH CENTRE OF KABBALAH INC (2025)

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff is the owner of certain real property by adverse possession, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Richard J. Montelione, J.), entered November 18, 2021.  The judgment, upon a decision of the same court dated March 25, 2021, made after a nonjury trial, is in favor of the defendants and against the plaintiff dismissing the complaint and declaring that the plaintiff is not the owner of the subject property by adverse possession, and is in favor of the defendants and against the plaintiff on the defendants’ counterclaim declaring that the defendants are the owners of the subject property.

ORDERED that the judgment is affirmed, with costs.

In 2017, the plaintiff commenced this action for a judgment declaring that it is the owner of a certain parcel of land located on the defendants’ adjacent property (hereinafter the disputed parcel) through adverse possession and for related injunctive relief.  In a judgment entered November 18, 2021, the Supreme Court, upon a decision dated March 25, 2021, made after a nonjury trial, dismissed the complaint, granted the defendants’ counterclaim, and declared that the plaintiff is not the owner of the disputed parcel by adverse possession and that the defendants are the owners of the disputed parcel.  The plaintiff appeals.

“In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mind in a close case that the trial judge had the advantage of seeing the witnesses” (Sanders v. U.S. 1 Laffey Real Estate Corp., 231 A.D.3d 760, 761, 220 N.Y.S.3d 326).  “[W]here the court's findings of fact rest in large measure on considerations relating to the credibility of witnesses ․ deference is owed to the trial court's credibility determinations” (Ganai v. 6910 Fort Hamilton Parkway Corp., 149 A.D.3d 914, 916, 52 N.Y.S.3d 411 [internal quotation marks omitted]).

“[I]n order to establish a claim to property by adverse possession, a claimant must prove, by clear and convincing evidence, that possession of the property was (1) hostile and under [a] claim of right;  (2) actual;  (3) open and notorious;  (4) exclusive;  and (5) continuous for the required period” (Jasopersaud v. Lewis, 222 A.D.3d 630, 632, 202 N.Y.S.3d 186 [internal quotation marks omitted];  see Salzberg v. Sena, 204 A.D.3d 853, 856, 166 N.Y.S.3d 264).  “A party claiming adverse possession may establish possession for the statutory period by ‘tacking’ the time that the party possessed the property onto the time that the party's predecessor adversely possessed the property” (Munroe v. Cheyenne Realty, LLC, 131 A.D.3d 1141, 1142, 16 N.Y.S.3d 842).  “A party claiming title by adverse possession is not required to show enmity or specific acts of hostility in order to establish the element of hostility.  This element is satisfied where an individual asserts a right to the property that is adverse to the title owner and also in opposition to the rights of the true owner” (Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [citation and internal quotation marks omitted];  see Walling v. Przybylo, 7 N.Y.3d 228, 233, 818 N.Y.S.2d 816, 851 N.E.2d 1167).  “However, hostility is negated by [s]eeking permission for use from the record owner” (Estate of Becker v. Murtagh, 19 N.Y.3d at 83, 945 N.Y.S.2d 196, 968 N.E.2d 433 [internal quotation marks omitted];  see Walling v. Przybylo, 7 N.Y.3d at 233, 818 N.Y.S.2d 816, 851 N.E.2d 1167).

Here, the evidence at trial established that the defendants had given the plaintiff's tenant permission to use the disputed parcel as a part of its junkyard business.  Thus, the plaintiff's permissive possession of the disputed parcel negated the element of hostility (see Salzberg v. Sena, 204 A.D.3d at 856, 166 N.Y.S.3d 264;  Estate of Becker v. Murtagh, 19 N.Y.3d at 83, 945 N.Y.S.2d 196, 968 N.E.2d 433).  Moreover, applying the statutes governing adverse possession that were in effect prior to the 2008 amendments to RPAPL article 5 (see Kagan v. Kropp, 228 A.D.3d 920, 921, 215 N.Y.S.3d 347;  Hogan v. Kelly, 86 A.D.3d 590, 591–592, 927 N.Y.S.2d 157), the Supreme Court's determination that the plaintiff failed to prove that its predecessor adversely possessed the disputed parcel was warranted by the evidence (see Munroe v. Cheyenne Realty, LLC, 131 A.D.3d at 1142, 16 N.Y.S.3d 842).

Accordingly, we affirm the judgment.

IANNACCI, J.P., BRATHWAITE NELSON, VOUTSINAS and LANDICINO, JJ., concur.