AMMIRATI v. VAN WICKLEN (2007)

Motion (sequence No. 1) by plaintiffs for an order pursuant to CPLR 3212 granting summary judgment in favor of plaintiffs (a) declaring plaintiffs' ownership in fee simple by adverse possession in the real property that is the subject of this action;  (b) barring defendants under Articles 5 and 15 of the Real Property Actions and Proceedings Law from claiming any right, title or interest in the subject real property, and (c) dismissing defendants' affirmative defenses and the counterclaim of defendants Gary and Joann Van Wicklen is granted.   Cross-motion (sequence No. 2) by defendant Nassau County for an order pursuant to CPLR 3212 dismissing the complaint and granting summary judgment in favor of defendant Nassau County is denied.

Plaintiffs bring this action to quiet title to real property located in Nassau County and designated as Section 50, Block 304, Lot 123.   Lot 123 is a 20′ x 130′ parcel contiguous to Lot 122.   Together Lots 122 and 123 form one (1) unified 80′ x 130′ area.

Plaintiffs purchased both Lots 122 and 123 in 1981 from Nick V. Alfonsina De Sanctis.   Lots 122 and 123 front the southerly side of Decatur Avenue in North Bellmore, are improved by a single-family residence and related amenities and have been occupied by plaintiffs and their children since that time.   The property street address is 1968 Decatur Avenue, North Bellmore, New York.   The Ammiratis acquired title to Lot 122 and Lot 123 as follows:

(a) Lot 122 by deed dated October 15, 1981, from Nick V. DeSanctis, which was recorded on November 20, 1981 in the Nassau County Clerk's Office in Deed Liber 9379, page 111.

(b) Lot 123 by deed dated October 15, 1981, from Nick V. DeSanctis, which had not been recorded.

The deed conveying title to Lot 122 was a recorded Bargain and Sale Deed with Covenants Against Grantor's Acts.   The deed for Lot 122 states that DeSanctis acquired title in 1969.   The unrecorded quitclaim deed for Lot 123 does not state when DeSanctis acquired title to Lot 123.   However, plaintiffs claim they acquired title to and possession of Lot 123 on October 15, 1981, from DeSanctis who was allegedly in title and possession on said date.

Defendant Nassau County claims it has superior title to Lot 123.   The County took title to Lot 123 under a tax deed dated May 9, 1989, recorded in the Nassau County Clerk's Office on May 16, 1989.   Because the County may own Lot 123 by virtue of a tax deed, plaintiffs' ownership claim is based on adverse possession of Lot 123.   Defendants Gary C. Van Wicklen and Joann E. Van Wicklen (the Van Wicklens) claim that in 2005 Nassau County offered Lot 123 for sale, soliciting bids from both the Van Wicklens and plaintiffs.   The Van Wicklens live next door to plaintiffs, at 1958 Decatur Avenue, North Bellmore, New York, which parcel is also contiguous to Lot 123.   Due to the within adverse possession claim, defendant County has not as yet delivered its deed to the Van Wicklens, who assert they are ready, willing and able to purchase Lot 123 for the bid price of $25,000.00.

In support of their motion, plaintiffs proffer their joint affidavit sworn to March 10, 2007, the deposition testimony of Nassau County by Sean T. Rainey and the deposition testimony of defendant Gary C. Van Wicklen.   At his deposition, Mr. Van Wicklen testified he was born on July 27, 1953, and has been living next door to Lot 123, at 1958 Decatur Avenue, for over 53 years.   He and his wife have resided at 1958 Decatur Avenue since their marriage in 1976.   Mr. Van Wicklen testified that a chain-link fence, installed when he was a child, separated 1958 Decatur Avenue from Lot 123.   The chain-link fence was installed along the entire westerly boundary of Lot 123.   The chain-link fence extends 130 feet from the front of the property to the rear, meeting with a concrete retaining wall also installed in the 1960's when he was a child.   As a consequence, Lot 123 was physically separated from the Van Wicklen property and formed a part of the Ammirati property.   At his deposition, in describing the conditions on Lot 123, defendant Van Wicklen stated that the chain link fence separating the Van Wicklen property from Lot 123 has been the same for as long as Mr. Van Wicklen could remember.   Moreover, it is undisputed that plaintiffs' landscaper has always taken care of the lawn and bushes in Lot 123 and otherwise exercised dominion and control of Lot 123 including installation of additional fencing, a shed, and a stone garden as well as both planting and removal of various trees.

Despite the tax proceedings initiated by the County in 2005, plaintiffs assert they have been in possession of Lot 123 continually and exclusively of anyone else from 1981 to the present pursuant to an unrecorded quitclaim deed.   Long before the County tried to sell Lot 123, plaintiffs contend they affirmatively asserted their ownership of Lot 123 in a letter dated March 27, 2001 to the County's Bureau of Real Estate & Insurance.   The letter states as follows:

“In reply to your recent letter about the parcel of land adjacent to our property, we do object to the sale of this land.

This property is fenced in as part of our yard, and we have been maintaining it since we purchased our home.   We have shrubs and grass planted on this land, and we pay a lawn service to maintain it.

Also, we have a quitclaim deed from the previous owner, Nicholas DeSanctis, for this land.   Please find copy of this enclosed.

Please advise, as this parcel of land has been part of our yard since we purchased our home, and we would like to keep it that way.”  (Affirmation in Support Exhibit S)

The bases for establishing a claim of adverse possession are well settled.

“A party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was either usually cultivated or improved' (RPAPL 522[1] ) or protected by a substantial inclosure'.   In addition, the party must prove by clear and convincing evidence the common-law requirements of adverse possession, to wit:  (1) that the possession was hostile and under claim of right;  (2) that it was actual;  (3) that it was open and notorious;  (4) that it was exclusive;  and (5) that it was continuous for the statutory period of 10 years.   Reduced to its essentials, this means nothing more than that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period.   The ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period' (internal citations omitted).”  (Hall v. Sinclaire, 35 A.D.3d 660 at p. 662, 826 N.Y.S.2d 706)

Assuming, arguendo, that the County took title to Lot 123 in May, 1989, plaintiffs have made a prima facie showing of entitlement to summary judgment by demonstrating that their adverse possession of Lot 123 thereafter ripened into good title as against the whole world no later than June, 1999-a date which is ten years after any transfer of title to the County (and six years before the County's attempted sale).  (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572.)

In opposing plaintiffs' claim, the County relies on the principle that a municipality cannot lose title to real property by adverse possession when it holds the property in its “governmental” capacity (see, generally, Kings Park Yacht Club, Inc. v. State, 26 A.D.3d 357, 809 N.Y.S.2d 551;  Monthie v. Boyle Rd. Assoc., 281 A.D.2d 15, 20, 724 N.Y.S.2d 178;  City of New York v. Sarnelli Bros., Inc., 280 A.D.2d 573, 720 N.Y.S.2d 555;  Casini v. Sea Gate Assn., 262 A.D.2d 593, 594, 692 N.Y.S.2d 676;  Litwin v. Town of Huntington, 208 A.D.2d 905, 617 N.Y.S.2d 888).   The County further asserts that the property which the government acquired by tax deed and held by the County for the eventual collection of real estate taxes is property taken by the County in its governmental capacity as a direct result of its powers to collect taxes.

 Defendant County's contentions are without merit.   While immunity will generally attach to property held in a “governmental” capacity, such as a highway, public stream, canal and public fairground, there is no immunity available for property held in a so-called “proprietary” capacity (see, Starner Tree Serv. Co. v. City of New Rochelle, 271 A.D.2d 681, 707 N.Y.S.2d 867;  Casini v. Sea Gate Assn., supra;  see also Albany Parking Services, Inc. v. City of Albany, 3 A.D.3d 711, 712, 770 N.Y.S.2d 472;  City of Tonawanda v. Ellicott Creek Homeowners Ass'n., Inc., 86 A.D.2d 118, 125-126, 449 N.Y.S.2d 116;  Town of North Hempstead v. Bonner, 77 A.D.2d 567, 568, 429 N.Y.S.2d 739;  cf. Karedes v. Colella, 100 N.Y.2d 45, 50, 760 N.Y.S.2d 84, 790 N.E.2d 257).   That a municipality takes land for tax collection purposes does not defeat an adverse possession claim if the subsequent purpose is merely re-sale, which is proprietary in nature and not a true governmental use (Casini v. Sea Gate Assn., supra;  see, also, Monthie v. Boyle Road Associates, LLC, 281 A.D.2d 15, 724 N.Y.S.2d 178).   As stated in Casini, at pages 594-595, 692 N.Y.S.2d 676, the Appellate Division, Second Department, held:

“[W]e find no merit to the plaintiffs' claim that the Association could not acquire adverse possession to the property because the City foreclosed on the land in 1977 to satisfy tax liens․  [L]and which is held by a municipality in its proprietary capacity is not immune from adverse possession․  Thus, it has been observed that [t]here is a well-recognized distinction between lands held by the State as sovereign in trust for the public and lands held as proprietor only, for the purpose of sale or other disposition' ․ such lands only as the State holds as a proprietor may be lost to the State;  it cannot lose such lands as it holds for the public, in trust for a public purpose [such] as highways, public streams, canals, public fairgrounds' ” (internal citations omitted).

 The County never used Lot 123 for any purpose and “always intended [it would be] sold to someone” (Deposition testimony of defendant County's Deputy of Real Estate Planning and Development at pp. 8-12).   As a consequence, it is clear that Lot 123 was held by the County in its proprietary capacity.

The County's claim that its title to Lot 123 cannot be divested by adverse possession because under CPLR 211(c) the County has 20 years to bring an action in ejectment is incorrect.  CPLR § 211(c) provides as follows:

The state will not sue a person for or with respect to real property, or the rents or profits thereof, by reason of the right or title of the state to the same, unless the cause of action accrued, or the state, or those from whom it claims, have received the rents and profits of the real property or of some part thereof, within twenty years before the commencement of the action.

 The attorneys for the County refer to no statute or case to support their conclusion that the extension of the statute of limitations for state actions to 20 years pursuant to CPLR 211(c) applies to the County.

 In interpreting the statute we are guided by a well-settled principle of statutory construction:  courts normally accord statutes their plain meaning, but “will not blindly apply the words of a statute to arrive at an unreasonable or absurd result.”  (Williams v. Williams, 23 N.Y.2d 592, 599, 298 N.Y.S.2d 473, 246 N.E.2d 333;  see also Matter of Rouss, 221 N.Y. 81, 91, 116 N.E. 782;  Holy Trinity Church v. United States, 143 U.S. 457, 460, 12 S.Ct. 511, 36 L.Ed. 226;  People v. Santi, 3 N.Y.3d 234, 785 N.Y.S.2d 405, 818 N.E.2d 1146.)   It is equally well settled that “[i]n implementing a statute, the courts must of necessity examine the purpose of the statute and determine the intention of the Legislature.”  (Williams v. Williams, supra at 598, 298 N.Y.S.2d 473, 246 N.E.2d 333.)   Indeed, “[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature” (McKinney's Cons. Law of NY, Book 1, Statutes § 92[a] at 177).   Legislative intent drives judicial interpretations in matters of statutory construction (see, People v. Allen, 92 N.Y.2d 378, 383, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998];  People v. Santi, supra ).

Adverse possession cases involving governmental entities other than New York State apply the standard limitations period set forth in CPLR § 212, which provides that “[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action.”   In Starner Tree Service Company v. City of New Rochelle, 271 A.D.2d 681, 707 N.Y.S.2d 867, the Court applied the ten (10) not twenty (20) year period in a claim against a municipality (see, also, Greenman v. Cortland, 141 A.D.2d 910, 529 N.Y.S.2d 227;  Almor Associates v. Town of Skaneateles, 231 A.D.2d 863, 647 N.Y.S.2d 316).

Contrary to the position of the County, the failure to pay real estate taxes on disputed property is not determinative of an adverse possession claim.   Nor is payment of real estate taxes evidence of possession, either actual or constructive (Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 643 N.Y.S.2d 939, 666 N.E.2d 532;  Greenleaf v. Brooklyn, F. & C.I.R. Co., 141 N.Y. 395, 399, 36 N.E. 393;  Archibald v. New York Cent. & Hudson Riv. R.R. Co., 157 N.Y. 574, 583, 52 N.E. 567).

 The facts in Joseph v. Whitcombe, 279 A.D.2d 122, 719 N.Y.S.2d 44 cited by the Van Wicklens, denying a claim of adverse possession by defendants Whitcombe as their occupancy was that of a “squatter” can be distinguished from the within action.   In Joseph, supra, defendants Whitcombe admitted when they first took possession that title was in another person, even though without knowledge of that person's identity.   In the within action, plaintiffs took possession in 1981 under a claim of title.   While plaintiffs did offer to purchase the property in the summer of 2005-an action arguably inconsistent with their current claims of ownership by adverse possession (Beyer v. Patierno, 29 A.D.3d 613, 615, 815 N.Y.S.2d 194;  Albright v. Beesimer, 288 A.D.2d 577, 579, 733 N.Y.S.2d 251;  Manhattan School of Music v. Solow, 175 A.D.2d 106, 571 N.Y.S.2d 958)-the ten (10) year prescriptive period had expired prior to the 2005 offer even when calculated from the County's May, 1989 tax deed (see, Posnick v. Herd, 241 A.D.2d 783, 785, 660 N.Y.S.2d 756;  New York State Elec. & Gas Corp. v. Persson, 64 A.D.2d 194, 409 N.Y.S.2d 440).   A claim of right will be defeated only if plaintiffs' acknowledgment of another's title is clearly shown by words or conduct and occurs during the statutory period (see, Walling v. Przybylo, 7 N.Y.3d 228, 818 N.Y.S.2d 816, 851 N.E.2d 1167).

 Moreover, defendants' contention that plaintiffs' deed was not recorded is immaterial.   In order to establish title by adverse possession it is not necessary that plaintiffs' claim of title from the unrecorded quitclaim deed actually be a valid document.   Plaintiffs' claim of adverse possession would be sufficient even if the deed actually conveyed nothing, provided their possession continued a sufficient length of time so it ripened into adverse possession (Village of Manchester v. Post, 97 Misc. 451, 455, 161 N.Y.S. 371, 373-374 (Sup.Ct. Ontario Co.1916) citing Tarplee v. Sonn, 109 App.Div. 241, 96 N.Y.S. 6;  Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742;  Baker v. Oakwood, 123 N.Y. 16, 25 N.E. 312;  Barnes v. Light, 116 N.Y. 34, 39, 22 N.E. 441;  see also Walling v. Przybylo, supra ).

The Court has considered all of the other arguments made by defendants and find them to be without merit.

Plaintiffs have established good title to Lot 123 by adverse possession.   Plaintiffs are declared the owners of Lot 123.

This decision constitutes the order of the court.   Costs are disallowed.

THOMAS P. PHELAN, J.