Air Stream Corp. v. 3300 Lawson Corp.
| Decision Date | 17 May 2011 |
| Docket Number | 2009-09378,Index No. 5902/06 |
| Parties | Air Stream Corp., respondent, v. 3300 Lawson Corp., appellant. |
| Court | New York Supreme Court — Appellate Division |
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
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.
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 stated portions of a judgment of the Supreme Court, Nassau County (Warshawsky, J.), entered August 18, 2009, which, 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.
ORDERED that the judgment is reversed insofar as appealed from, on the law and 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 interfering with the plaintiff's use of the seven-foot strip of land located on the defendant's property, and the plaintiff is directed to remove that 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 seven feet of the loading dock (hereinafter the Lawson strip) are located within Lawson's borders, while the remaining seven feet of the loading dock (hereinafter the Air Stream strip) are located within Air Stream'sborders.
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 appeals.
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 NY2d 492, 499 [internal quotation marks omitted]; see Walsh v Ellis, 64 AD3d 702, 704; Krol v Eckman, 256 AD2d 945, 946-947).
The Supreme Court's determination that Air Stream had acquired the Lawson strip by adverse possession is not supported by the record. Based on the law in effect when this action was commenced, "[t]o establish title by adverse possession not based on a written instrument, plaintiffs were required to establish by clear and convincing evidence that for a period of 10 years they actually possessed the property in dispute and that their possession was open, notorious, exclusive, continuous, hostile and under a claim of right, and that the disputed parcel was either usually cultivated or improved' or protected by a substantial inclosure'" (Goss v Trombly, 39 AD3d 1128, 1129, quoting RPAPL former 522[1], [2]; see Fitzgerald v Conroy, 15 AD3d 534, 534-535). Here, Air Stream did not carry its burden of establishing exclusivity. Rather, the record reflects that for at least a four-month window during the prescriptive period of 1993 to 2003, Lawson and its tenant also used the Lawson strip in connection with various renovations and deliveries (see Estate of Becker v Murtagh, 75 AD3d 575, 578, lv granted 16 NY3d 707; Fitzgerald v Conroy, 15 AD3d at 535; McFarland v Michel, 2 AD3d 1297, 1299-1300).
Air Stream similarly failed to establish its entitlement to a prescriptive easement over the Lawson strip. ...
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