SNYDER v. FABRIZIO

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Supreme Court, Appellate Division, Fourth Department, New York.

Gary P. SNYDER, Plaintiff-Respondent, v. Michael FABRIZIO and Karen Fabrizio, Defendants-Appellants.

Decided: December 31, 2003

PRESENT:  PINE, J.P., WISNER, HURLBUTT, KEHOE, AND HAYES, JJ. Meggesto, Crossett & Valerino, LLP, Syracuse (Heather R. La Dieu of Counsel), for Defendants-Appellants. James P. Murphy, Skaneatales, for Plaintiff-Respondent.

 Defendants appeal from an order and judgment granting plaintiff title by adverse possession to a small disputed area of defendants' property.   We disagree with Supreme Court that plaintiff met his burden of establishing by clear and convincing evidence that he acquired the small disputed area by adverse possession, and we therefore reverse (see generally Falco v. Pollitts, 298 A.D.2d 838, 747 N.Y.S.2d 874).  “ ‘To acquire title to real property by adverse possession * * * the possessor [must] establish 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' ” (Palumbo v. Heumann, 295 A.D.2d 935, 935, 743 N.Y.S.2d 640;  see Tubolino v. Drake, 178 A.D.2d 951, 578 N.Y.S.2d 745).   We conclude from our review of the record that the evidence was not sufficient as a matter of law to support the court's finding that plaintiff demonstrated, by clear and convincing evidence, exclusive possession of the small disputed area for the requisite 10-year period (see Falco, 298 A.D.2d at 839, 747 N.Y.S.2d 874;  see also Mastin v. Village of Lima, 86 A.D.2d 777, 778, 448 N.Y.S.2d 274).   We note that the court concluded that plaintiff's evidence was not clear and convincing with regard to a larger disputed area that wholly contained the smaller disputed area because there was conflicting testimony about the mowing and cultivation practices of plaintiff and defendants with respect to those portions of the larger disputed area outside of the smaller disputed area.   That conflicting testimony made it impossible for plaintiff to establish his exclusive possession of the larger area for a continuous period of 10 years.   The testimony concerning the smaller disputed area, however, was just as conflicting, if not more so, than the testimony concerning the larger disputed area.   Therefore, we reverse the order and judgment insofar as appealed from and grant judgment in favor of defendants decreeing that they are the fee title owners of the entirety of the smaller disputed area as depicted in plaintiff's exhibit 21 (see Jones v. Breheny, 280 A.D.2d 973, 720 N.Y.S.2d 881).

It is hereby ORDERED the order and judgment insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and judgment is granted in favor of defendants as follows:

It is ORDERED, ADJUDGED AND DECREED that defendants are the fee title owners of the entirety of the smaller disputed area as depicted in a survey map of Jay D. Holbrook, LLS (license No. 50047) dated October 11, 2000.

MEMORANDUM: