DEUTSCHE BANK NATIONAL TRUST COMPANY v. Margirit Melamed, nonparty-appellant. (2020)

DECISION & ORDER

In an action to foreclose a mortgage, nonparty Margirit Melamed appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 20, 2018.  The order granted the plaintiff's motion for leave to enter a default judgment, for an order of reference, and related relief.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to foreclose a mortgage on certain residential property allegedly owned by the defendant Orna Nachimovsky.  After Nachimovsky failed to appear or answer the complaint, the plaintiff moved for leave to enter a default judgment, for an order of reference, and related relief.  Nonparty Margirit Melamed sought to oppose the plaintiff's motion on various grounds, contending as a preliminary matter that she had standing to do so because she had acquired title to the property by adverse possession.

In the order appealed from, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment, for an order of reference, and related relief, determining, as relevant herein, that Melamed had failed to establish that she acquired title to the property by adverse possession and, in effect, therefore, that she lacked standing to oppose the plaintiff's motion.  Melamed appeals.

In order to establish that she acquired title to the property by adverse possession, Melamed “was required to prove, by clear and convincing evidence, that [her] possession of the property was (1) hostile and under claim of right;  (2) actual;  (3) open and notorious;  (4) exclusive;  and (5) continuous for the required statutory period” (Fini v. Marini, 164 A.D.3d 1218, 1220, 83 N.Y.S.3d 595;  see RPAPL 501[2]).  Here, the evidence in the record negated Melamed's claim that her possession of the property was hostile and under claim of right (see RPAPL 501[3];  Fini v. Marini, 164 A.D.3d at 1220, 83 N.Y.S.3d 595;  D'Argenio v. Ashland Bldg., LLC, 78 A.D.3d 758, 759, 910 N.Y.S.2d 550;  Turner v. Baisley, 197 A.D.2d 681, 682, 602 N.Y.S.2d 907).

Under such circumstances, we agree with the Supreme Court's determination that Melamed failed to establish that she acquired title to the property by adverse possession and, in effect, therefore, that she lacked standing to oppose the plaintiff's motion.

In light of our determination, we need not reach Melamed's remaining contentions.

MASTRO, J.P., LEVENTHAL, MALTESE and IANNACCI, JJ., concur.