NORTH STREET CORPORATION v. GETTY SAUGERTIES CORPORATION (2009)

Appeals (1) from an order of the Supreme Court (Connolly, J.), entered June 19, 2008 in Ulster County, which, among other things, granted plaintiff's motion for summary judgment, (2) from the judgment entered thereon, and (3) from an order of said court, entered January 5, 2009 in Ulster County, which denied defendant's motion to reargue and/or renew.

Plaintiff and defendant own adjoining parcels of real property in the Town of Saugerties, Ulster County. Plaintiff's property consists of a shopping center and parking lot which was constructed in 1977 by its predecessor in interest and purchased by plaintiff in 1994. Defendant's property was developed for use as a gasoline station and opened for business in 1980. A fence runs close to the boundary line between the properties, but lies entirely on defendant's property. A narrow 0.129-acre strip of land between the boundary line and the fence (hereinafter referred to as the strip) is in dispute.

In June 2007, plaintiff commenced this action seeking a declaration that it has title to the strip by adverse possession. In its answer, defendant interposed counterclaims seeking, among other things, to quiet title. Thereafter, plaintiff moved for summary judgment. Defendant cross-moved for, among other things, summary judgment dismissing the complaint or, in the alternative, a continuance pursuant to CPLR 3212(f) to allow for further discovery. Supreme Court granted plaintiff's summary judgment motion, finding that it had acquired title to the strip by way of adverse possession, and denied defendant's cross motion. Defendant's motion for leave to renew and/or reargue was denied. Defendant appeals.

Plaintiff was properly awarded summary judgment on its adverse possession claim. “To succeed on a claim of adverse possession, the possessor must establish by clear and convincing evidence that the character of the possession is hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years” (Robinson v. Robinson, 34 A.D.3d 975, 976 [2006] [internal quotation marks and citations omitted], lv denied 8 N.Y.3d 805 [2007]; see Walling v. Przybylo, 7 N.Y.3d 228, 232 [2006]; Larsen v. Hanson, 58 A.D.3d 1003, 1004 [2009]; Gallagher v. Cross Hill, LLC, 45 A.D.3d 1013, 1013 [2007] ). So long as the use is open, notorious and continuous for the 10-year period, hostility will be presumed (see Goss v. Trombly, 39 A.D.3d 1128, 1129 [2007]; Fatone v. Vona, 287 A.D.2d 854, 856 [2001] ). Moreover, where, as here, the claim of title is not founded upon a written instrument, it must also be established that the disputed premises was “usually cultivated or improved” or “protected by a substantial enclosure” (RPAPL former 522[1], [2]; see Gallagher v. Cross Hill, LLC, 45 A.D.3d at 1013-1014, 845 N.Y.S.2d 532; Comrie, Inc. v. Holmes, 40 A.D.3d 1346, 1346-1347 [2007], lv denied 9 N.Y.3d 815 [2007]; Goss v. Trombly, 39 A.D.3d at 1129, 835 N.Y.S.2d 493).¹

Plaintiff proffered photographs, a survey map and affidavits from Martin Rogowsky and Steve Rogowsky, its two principal owners and officers, as well as an affidavit from William Parr, a contractor who has maintained the strip since 1980 on behalf of plaintiff's predecessor and since 1994 on plaintiff's behalf. The affidavits establish that, after the fence was erected in 1980 separating the strip from the rest of defendant's property, plaintiff's predecessor in interest hired Parr to fill and seed the strip, which was then a marshy area. Since that time, Parr has continuously and on a regular basis maintained the strip's grass, planted vegetation, removed rubbish and debris, and deposited snow plowed from plaintiff's parking lots upon it. Parr averred that no one has ever objected to his activities, nor has anyone representing defendant granted him permission to perform them. He further averred that he has never been informed that anyone other than plaintiff and its predecessor owned the strip and that no one other than his company, on behalf of plaintiff or its predecessor, has performed such work. Both Martin Rogowsky and Steve Rogowsky stated that, since plaintiff's purchase in 1994, defendant has never objected to plaintiff's agents, employees or contractors going onto the strip, nor has permission to do so been granted. Rather, they believed that they owned the strip and exclusively maintained it as their own even though it was not included in their deed description. This evidence of plaintiff's continuous use and maintenance of the strip exemplified its possession as open and notorious, constituting notice to others that it was claiming an adverse and hostile interest in it (see Robinson v. Robinson, 34 A.D.3d at 977, 825 N.Y.S.2d 277; Moore v. City of Saratoga Springs, 296 A.D.2d 707, 709-710 [2002] ).

With respect to the requirement of usual cultivation or improvement,² the type of acts necessary to satisfy this mandate “will vary with ‘the nature and situation of the property and the uses to which it can be applied’ and must ‘consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners' “ (Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 160 [1996], quoting Ramapo Mfg. Co. v. Mapes, 216 N.Y. 362, 373 [1915]; accord Gallagher v. Cross Hill, LLC, 45 A.D.3d at 1014, 845 N.Y.S.2d 532; Goss v. Trombly, 39 A.D.3d at 1129, 835 N.Y.S.2d 493). Notwithstanding defendant's assertions to the contrary, Parr's activities on behalf of plaintiff and its predecessor over a period of 27 years were consistent with the nature, location and potential use of this property-a narrow strip of grass between two commercial businesses (see Moore v. City of Saratoga Springs, 296 A.D.2d at 709-710, 745 N.Y.S.2d 238; Fatone v. Vona, 287 A.D.2d at 857, 731 N.Y.S.2d 521; Boeheim v. Vanarnum, 207 A.D.2d 582, 583 [1994]; Franzen v. Cassarino, 159 A.D.2d 950, 952 [1990]; Woodrow v. Sisson, 154 A.D.2d 829, 831 [1989] ).³ Based on this proof, plaintiff made a prima facie showing of entitlement to the strip by adverse possession.

With the burden shifted to defendant to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]; Gallagher v. Cross Hill, LLC, 45 A.D.3d at 1015, 845 N.Y.S.2d 532), defendant proffered the affirmations from its attorney and affidavits of an executive vice-president of its parent corporation. The affirmations of defendant's attorney, who had no personal knowledge of the operative facts, were without probative value and consequently insufficient to defeat the motion (see Dukett v. Wilson, 31 A.D.3d 865, 869 [2006]; Wagman v. Village of Catskill, 213 A.D.2d 775, 778 [1995] ). Further, the bare conclusory assertions by the executive vice-president of defendant's parent corporation, which were unsupported by any independent factual basis, were insufficient to raise a triable issue of fact (see Golden Hammer Auto Body Corp. v. Consolidated Rail Corp., 151 A.D.2d 545, 546 [1989]; see generally Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Although defendant submitted affidavits alleging that, in May 2007, plaintiff unsuccessfully negotiated to purchase its property, including the strip, a possessor's offer to purchase made after the 10-year statutory period has run will not defeat a valid claim of adverse possession (see Larsen v. Hanson, 58 A.D.3d at 1005, 871 N.Y.S.2d 483; Posnick v. Herd, 241 A.D.2d 783, 785 [1997] ). Thus, in the absence of any proof raising a triable issue of fact, Supreme Court properly granted plaintiff summary judgment on its adverse possession claim.

Nor are we persuaded that plaintiff's summary judgment motion should have been denied as premature. Although “[a] motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party” (Pank v. Village of Canajoharie, 275 A.D.2d 508, 509 [2000]; see CPLR 3212[f]; Rochester Linoleum & Carpet Ctr., Inc. v. Cassin, 61 A.D.3d 1201, 1202 [2009] ), the party opposing the motion must make an evidentiary showing to support that conclusion (see Zinter Handling, Inc. v. Britton, 46 A.D.3d 998, 1001 [2007]; Odorizzi v. Otsego N. Catskills Bd. of Coop. Educ. Servs., 307 A.D.2d 490, 492 [2003]; Scofield v. Trustees of Union Coll. in Town of Schenectady, 267 A.D.2d 651, 652 [1999] ). Here, defendant's proof fell short of the required showing, and its speculation that the discovery process may yield evidence sufficient to defeat the motion is not enough (see Clochessy v. Gagnon, 58 A.D.3d 1008, 1010 [2009]; Lerwick v. Krna, 29 A.D.3d 1206, 1209 [2006], lv denied 7 N.Y.3d 712 [2006] ). Thus, we decline to disturb Supreme Court's discretionary determination on this issue.

Finally, we are unpersuaded that Supreme Court erred in denying defendant's motion for renewal.⁴ “ ‘[A] motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted’ “ (Tibbits v. Verizon N .Y., Inc., 40 A.D.3d 1300, 1302-1303 [2007], quoting Wahl v. Grippen, 305 A.D.2d 707, 707 [2003]; see CPLR 2221[e]; Matter of Cooke Ctr. for Learning & Dev. v. Mills, 19 A.D.3d 834, 837 [2005], lv dismissed and denied 5 N.Y.3d 846 [2005] ). Here, the alleged “newly discovered evidence” consisted of a purported written agreement-which was not produced-between defendant's parent corporation and a third-party entity, KTB Associates, pursuant to which KTB allegedly agreed to perform certain improvements on defendant's premises. This evidence, however, was not provided in defendant's initial moving papers but only in its reply papers and, therefore, Supreme Court acted well within its discretion in declining to consider it (see N.A.S. Partnership v. Kligerman, 271 A.D.2d 922, 923 [2000] ). Moreover, defendant failed to proffer any justifiable excuse for its failure to offer such evidence in opposition to plaintiff's summary judgment motion (see Khan v. Levy, 52 A.D.3d 928, 929 [2008] ). “Renewal is not a means by which to remedy the failure to present evidence which, with due diligence, could have been produced at the time of the original motion” (id. at 930, 859 N.Y.S.2d 308 [citations omitted]; see Cippitelli v. County of Schenectady, 307 A.D.2d 658, 658 [2003] ). Finding no abuse of discretion, we will not disturb Supreme Court's decision to deny the renewal motion (see First Union National Bank v. Williams, 45 A.D.3d 1029, 1030 [2007]; Matter of Cooke Ctr. for Learning & Dev. v. Mills, 19 A.D.3d at 838, 797 N.Y.S.2d 173).

ORDERED that the orders and judgment are affirmed, with costs.

PETERS, J.P.

ROSE, KANE, KAVANAGH and McCARTHY, JJ., concur.