Air Stream Corp. v. 3300 Lawson Corp.

• Decision Date: 17 October 2012
• Citation: 99 A.D.3d 822,952 N.Y.S.2d 608,2012 N.Y. Slip Op. 06903
• Parties: AIR STREAM CORP., respondent, v. 3300 LAWSON CORP., appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 822

952 N.Y.S.2d 608

2012 N.Y. Slip Op. 06903

AIR STREAM CORP., respondent,

v.3300 LAWSON CORP., appellant.

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

Oct. 17, 2012.

Jaspan Schlesinger LLP, Garden City, N.Y. (Linda S. Agnew and Lisa A. Cairo of counsel), for appellant.

Dollinger, Gonski & Grossman, Carle Place, N.Y. (Matthew Dollinger and Floyd G. Grossman of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and ARIEL E. BELEN, JJ.

In an action, inter alia, for a judgment declaring that the plaintiff is the owner of certain real property by adverse possession, the defendant appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), entered August 18, 2009, as, upon a decision of the same court dated June 9, 2009, made after a nonjury trial, declared that the plaintiff had acquired title to a seven-foot strip of land located on the defendant's property by adverse possession, that the defendant does not have an easement by grant over a seven-foot strip of land located on the plaintiff's property, and that the defendant is permanently enjoined from interfering with the plaintiff's use of the seven-foot strip of land located on the defendant's property, and, in effect, denied the defendant's counterclaims for a judgment declaring that the defendant had an easement by grant over the seven-foot strip of land located on the plaintiff's property and directing the plaintiff to remove that portion of a cement platform that encroaches on the defendant's property. By decision and order dated May 17, 2011, this Court reversed the judgment of the Supreme Court insofar as appealed from, and declared that the plaintiff did not acquire the seven-foot strip of land located on the defendant's property by adverse possession, that the defendant has an easement by grant over a seven-foot strip of land located on the plaintiff's property, and that the defendant is not enjoined from interfering with the plaintiff's use of the seven-foot strip of land located on the defendant's property, and the plaintiff was directed to remove that portion of its cement platform that encroaches on the defendant's property ( see Air Stream Corp. v. 3300 Lawson Corp., 84 A.D.3d 987, 924 N.Y.S.2d 104). In a memorandum decision dated April 3, 2012, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court “for further proceedings in accordance with the principles of law” expressed in Estate of Becker v. Murtagh, 19 N.Y.3d 75, 945 N.Y.S.2d 196, 968 N.E.2d 433 ( see Air Stream Corp. v. 3300 Lawson Corp., 18 N.Y.3d 972, 944 N.Y.S.2d 475, 967 N.E.2d 700).

ORDERED that, upon remittitur from the Court of Appeals, the judgment is reversed insofar as appealed from, on the facts, with costs, and it is declared that the plaintiff did not acquire the seven-foot strip of land located on the defendant's property by adverse possession, that the defendant has an easement by grant over a seven-foot strip of land located on the plaintiff's property, and that the defendant is not enjoined from interferingwith the plaintiff's use of the seven-foot strip of land located on the defendant's property, and the plaintiff is directed to remove the portion of its cement platform that encroaches on the defendant's property.

The plaintiff, Air Stream Corp. (hereinafter Air Stream), owns the real property located at 3400 Lawson Boulevard in Oceanside. The defendant, 3300 Lawson Corp. (hereinafter Lawson), owns the real property located at 3300 Lawson Boulevard, which is adjacent to 3400 Lawson Boulevard. Two loading docks are located entirely within Air Stream's property boundaries, and one loading dock is located entirely within Lawson's property boundaries. Another loading dock, however, is bisected by the parties' common property boundary, such that a seven-foot strip of the loading dock (hereinafter the Lawson strip) is located within Lawson's boundaries, while the remaining seven-foot strip of the loading dock (hereinafter the Air Stream strip) is located within Air Stream's boundaries.

In 2006 Air Stream commenced this action, alleging that it had acquired the Lawson strip through adverse possession or, in the alternative, had acquired a prescriptive easement. Air Stream further alleged that Lawson never had an easement by grant over the Air Stream strip and, even if such an easement previously existed, Air Stream had extinguished that easement through adverse possession. Additionally, Air Stream sought a permanent injunction enjoining Lawson from fencing in the Lawson strip.

Lawson counterclaimed, inter alia, for an order or judgment directing Air Stream to remove that portion of a cement platform that allegedly encroached on Lawson's property, as well as a judgment declaring that Lawson enjoys an easement over the Air Stream strip.

Following a nonjury trial, the Supreme Court granted all the relief sought by Air Stream and, in effect, denied Lawson's counterclaims. Lawson appealed to this Court. By decision and order dated May 17, 2011, this Court reversed the judgment of the Supreme Court insofar as appealed from, and declared that Air Stream did not acquire the Lawson strip by adverse possession, that Lawson has an easement by grant over the Air Stream strip, and that Lawson is not enjoined from interfering with Air Stream's use of the Lawson strip, and Air Stream was directed to remove that portion of its cement platform that encroaches on Lawson's property ( see Air Stream Corp. v. 3300 Lawson Corp., 84 A.D.3d 987, 924 N.Y.S.2d 104). In arriving at this determination, the Court relied in part on Estate of Becker v. Murtagh, 75 A.D.3d 575, 905 N.Y.S.2d 267.

On April 3, 2012, Estate of Becker v. Murtagh, 75 A.D.3d 575, 905 N.Y.S.2d 267 was reversed insofar as appealed from ( see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 945 N.Y.S.2d 196, 968 N.E.2d 433). That same day, the Court of Appeals issued a decision in Air Stream Corp. v. 3300 Lawson Corp., 84 A.D.3d 987, 924 N.Y.S.2d 10418 N.Y.3d 972, 944 N.Y.S.2d 475, 967 N.E.2d 700,revg.84 A.D.3d 987, 924 N.Y.S.2d 104, in which it reversed this Court's decision and order and remitted the matter to this Court “for further proceedings in accordance with the principles of law” expressed in Estate of Becker v. Murtagh, 19 N.Y.3d 75, 945 N.Y.S.2d 196, 968 N.E.2d 433.

Upon review of a determination rendered after a nonjury trial, this Court's authority “is as broad as that of the trial court,” and this Court may “render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses” ( Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 [internal quotation marks omitted]; see Walsh v. Ellis, 64 A.D.3d 702, 704, 883 N.Y.S.2d 563;Krol v. Eckman, 256 A.D.2d 945, 946–947, 681 N.Y.S.2d 885).

“ ‘Where there has been an actual continued occupation of premises undera claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely’ (RPAPL former 521). 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). The character of the possession must be such that it would give the owner a cause of action in ejectment against the occupier. In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure’ (RPAPL former 522). 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 80–81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [citations and internal quotation marks omitted] ).

“To establish the ‘exclusivity’ element, the adverse possessor must alone care for or improve the disputed property as if it were his/her own. The focus is on whether the party claiming title by adverse possession exercised exclusive possession and control of the property. Thus, allowing others to use the property does not necessarily negate ‘exclusivity.’ When the party claiming adverse possession permits others to use the property, exclusivity exists where the claimant's use of the property is ‘separate and...