PARSONS v. HOLLINGSWORTH

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

Patricia A. PARSONS and Daniel G. McIntosh, Plaintiffs-Respondents, v. Kathleen A. HOLLINGSWORTH, Defendant-Appellant.

Decided: March 31, 1999

Present:  PINE, J.P., HAYES, WISNER, HURLBUTT and SCUDDER, JJ. Laura J. Poyzer, Macedon, for plaintiffs-respondents. Sutton Deleeuw Clark & Darcy (John J. Darcy, of counsel), for defendant-appellant.

 In this action pursuant to RPAPL article 15, defendant appeals from a judgment following a bench trial awarding plaintiffs title to a strip of land between their property line and a fence that was on defendant's property when defendant purchased the property.   Contrary to defendant's contention, plaintiffs established by clear and convincing evidence that their possession of the land up to the fence for a period of 10 years was “hostile and under claim of right, actual, open and notorious, exclusive and continuous” (Brand v. Prince, 35 N.Y.2d 634, 636, 364 N.Y.S.2d 826, 324 N.E.2d 314;  see, CPLR 212[a];  Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 159, 643 N.Y.S.2d 939, 666 N.E.2d 532;  City of Tonawanda v. Ellicott Creek Homeowners Assn., 86 A.D.2d 118, 120, 449 N.Y.S.2d 116, appeal dismissed 58 N.Y.2d 824).   Once plaintiffs established that they used the land openly and continuously as a yard and storage area (see, Young v. Saniski, 198 A.D.2d 704, 705, 603 N.Y.S.2d 367), a presumption arose that the use was hostile (see, Katona v. Low, 226 A.D.2d 433, 434, 641 N.Y.S.2d 62;  Pickett v. Whipple, 216 A.D.2d 833, 834, 629 N.Y.S.2d 489;  City of Tonawanda v. Ellicott Creek Homeowners Assn., supra, at 121, 449 N.Y.S.2d 116).   Defendant submitted no evidence that plaintiffs' use of the property was permissive, thus failing to rebut the presumption that it was hostile (see, City of Tonawanda v. Ellicott Creek Homeowners Assn., supra, at 121, 449 N.Y.S.2d 116;  cf., Pickett v. Whipple, supra).   By submitting proof that they planted flowers and shrubs in the area and allowed thick brush to develop for privacy, plaintiffs further established by clear and convincing evidence that the land was “usually cultivated or improved”, and, in any event, they established that it was “protected by a substantial inclosure”, i.e., the fence (RPAPL 522[1], [2];  see, Katona v. Low, supra, at 433, 641 N.Y.S.2d 62;  Mastin v. Village of Lima, 86 A.D.2d 777, 448 N.Y.S.2d 274).  There was no evidence that this type of cultivation was out of character for property located along the water (see generally, Ray v. Beacon Hudson Mtn. Corp., supra, at 156, 160, 643 N.Y.S.2d 939, 666 N.E.2d 532;  City of Tonawanda v. Ellicott Creek Homeowners Assn., supra, at 122-123, 449 N.Y.S.2d 116).

Judgment unanimously affirmed without costs.

MEMORANDUM: