BURSKY v. GERRATANO

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

Claire BURSKY, et al., appellants, v. Emanuel GERRATANO, et al., respondents.

2017-06208

Decided: June 24, 2020

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ. Steven Greenfield, Westhampton Dunes, NY, for appellants. Capuder Fazio Giacoia LLP, New York, N.Y. (Alfred M. Fazio of counsel), for respondents.

DECISION & ORDER

In an action for declaratory and injunctive relief and to recover damages for trespass, the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Lawrence Knipel, J.), dated June 7, 2017.  The judgment, insofar as appealed from, upon a decision of the same court dated November 21, 2016, made after a nonjury trial, granted the defendants' counterclaim declaring that they had acquired title to the subject property by adverse possession, and thereupon, inter alia, enjoined the plaintiffs from entering upon the subject property.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

For approximately 40 years, the plaintiff Claire Bursky and the defendants lived side-by-side on adjacent properties separated by a fence.  The parties believed that the fence ran along the proper boundary line between their respective properties.  In 2010, Bursky and her husband, the plaintiff Stanley Indig (hereinafter together the plaintiffs), obtained a survey which revealed that approximately 126 square feet of the property on the defendants' side of the fence was part of the plaintiffs' property as described by the parties' respective deeds.  The plaintiffs commenced this action for declaratory and injunctive relief and to recover damages for trespass.  The defendants answered, and in their first counterclaim, sought a judgment declaring that they had acquired title to the disputed property by adverse possession.

After a nonjury trial, in a decision dated November 21, 2016, the Supreme Court found that the defendants had established adverse possession over the disputed portion of the property.  In a judgment dated June 7, 2017, the court, inter alia, granted the defendants' counterclaim declaring that they had acquired title to the disputed property by adverse possession, enjoined the plaintiffs from entering upon the disputed property, and directed that the metes and bounds descriptions of the parties' respective properties be modified accordingly.  The plaintiffs appeal.

In 2008, the Legislature enacted amendments to the adverse possession statutes (see L 2008, ch 269).  Here, however, since title to the disputed property allegedly vested in the defendants by adverse possession in 1983, the law in effect prior to the amendments is applicable (see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81 n 4, 945 N.Y.S.2d 196, 968 N.E.2d 433;  5262 Kings Hwy., LLC v. Nadia Dev., LLC, 121 A.D.3d 748, 749, 994 N.Y.S.2d 631;  Pakula v. Podell, 103 A.D.3d 864, 962 N.Y.S.2d 254).  Accordingly, to establish a claim of adverse possession, “the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years)” (Estate of Becker v. Murtagh, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433;  see Walling v. Przybylo, 7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167;  Warren v. Carreras, 133 A.D.3d 592, 593, 19 N.Y.S.3d 309;  see also CPLR 212[a] ).  Where, as here, the claim of right is not founded upon a written instrument or a judgment or decree, the party asserting title by adverse possession must additionally establish possession and occupancy of the land by proving either that it “has been usually cultivated or improved” or that “it has been protected by a substantial inclosure” (former RPAPL 522;  see RPAPL 521).  “By their nature, regular cultivation, improvement and inclosure of another's land constitute open and notorious acts of possession that would place record owners on notice of an adverse claim to the property” (Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 160, 643 N.Y.S.2d 939, 666 N.E.2d 532).  “Because the acquisition of title by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence” (Estate of Becker v. Murtagh, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433;  see Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d at 159, 643 N.Y.S.2d 939, 666 N.E.2d 532;  Van Valkenburgh v. Lutz, 304 N.Y. 95, 98, 106 N.E.2d 28).

Here, the plaintiffs contend that the defendants failed to establish, by clear and convincing evidence, that their occupation of the disputed property was hostile to the plaintiffs' interests and under a claim of right, or that the defendants cultivated or improved the disputed property, or protected it with a substantial inclosure.

The defendants' testimony and documentary submissions at trial established that the disputed property sits wholly on the defendants' side of the fence, and it is improved upon by a raised concrete platform that is cemented to the fence, a portion of the rear porch to the defendants' house, as well as a portion of the staircase to that porch.  The defendants' evidence further established that over the years, they had made repairs on a regular basis to the fence, the concrete platform, and the rear porch and staircase.  Conversely, the trial evidence established that the plaintiffs performed no maintenance or improvements on the disputed property over the years, as they believed that it belonged to the defendants.  The defendants, thus, established by clear and convincing evidence that they had improved the disputed property and protected it by a substantial inclosure, and that they held the disputed property under a claim of right and adverse to the interests of plaintiffs (see Estate of Becker v. Murtagh, 19 N.Y.3d at 82–83, 945 N.Y.S.2d 196, 968 N.E.2d 433;  Warren v. Carreras, 133 A.D.3d at 593, 19 N.Y.S.3d 309;  cf. Pritsiolas v. Apple Bankcorp, Inc., 120 A.D.3d 647, 650–651, 992 N.Y.S.2d 71).

The plaintiffs' remaining contentions are without merit.

MASTRO, J.P., MILLER, MALTESE and BRATHWAITE NELSON, JJ., concur.

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