BOCKOWSKI BOCKOWSKI v. MALAK

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

Elizabeth BOCKOWSKI, an Infant, by Her Mother and Natural Guardian, Paula BOCKOWSKI, et al., Appellants, v. Robert MALAK, et al., Respondents.

Decided: February 20, 2001

LAWRENCE J. BRACKEN, Acting P.J., GLORIA GOLDSTEIN, HOWARD MILLER, and SANDRA J. FEUERSTEIN, JJ. Philip J. Kaplan, Staten Island, N.Y., for appellants. John Z. Marangos, Staten Island, N.Y. (Shannon Saks on the brief), for respondents.

In an action, inter alia, to permanently enjoin the defendants from trespassing upon the plaintiffs' property and to award the plaintiffs sole title and exclusive possession of an adjoining parcel of property, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Cusick, J.), entered October 12, 1999, which denied their motion for a preliminary injunction and granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On or about July 6, 1979, the plaintiffs, record owners of a certain parcel of real property located in Richmond County, installed a fence on a portion of the adjoining property, thereby enclosing an area of approximately three or four feet by 158 feet, and planted various shrubs, bushes, and trees on the parcel.   In April 1999 the defendants, who had purchased the adjoining parcel two years earlier, removed the fence.   The plaintiffs commenced this action seeking, inter alia, an award of ownership of the property by adverse possession.   In their complaint, they failed to allege that their possession was under claim of right.   Their submissions to the court acknowledge that the fence was placed on “neighboring property”, and that the plaintiff Paula Bockowski explicitly admitted that she did not own the property.

 The plaintiffs admitted that the fence was constructed on land that they knew did not belong to them (see, Gerlach v. Russo Realty Corp., 264 A.D.2d 756, 695 N.Y.S.2d 128;  Dittmer v. Jacwin Farms, Inc., 224 A.D.2d 477, 478, 637 N.Y.S.2d 785;  see also, Matter of Union Indem. Ins. Co., 89 N.Y.2d 94, 651 N.Y.S.2d 383, 674 N.E.2d 313;  Northville Indus. Corp. v. National Union Fire Ins. Co., 89 N.Y.2d 621, 657 N.Y.S.2d 564, 679 N.E.2d 1044;  Kurten v. R.D. Werner Co., 139 A.D.2d 699, 527 N.Y.S.2d 455;  cf., Katona v. Low, 226 A.D.2d 433, 641 N.Y.S.2d 62).   The plaintiffs' possession of the disputed parcel of property was never under a claim of right.   Mere possession, no matter how long continued, gives no title (see, MAG Associates, Inc. v. SDR Realty, Inc., 247 A.D.2d 516, 669 N.Y.S.2d 314;  Soukup v. Nardone, 212 A.D.2d 772, 623 N.Y.S.2d 259;  Schoenfeld v. Chapman, 280 App.Div. 464, 466, 115 N.Y.S.2d 1, affd. 305 N.Y. 698, 112 N.E.2d 779).   Accordingly, the defendants were entitled to summary judgment.

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