Almeida v. Wells

• Decision Date: 29 June 2010
• Citation: 904 N.Y.S.2d 736,74 A.D.3d 1256
• Parties: Ines ALMEIDA, respondent, v. Wendy WELLS, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

904 N.Y.S.2d 736 74 A.D.3d 1256 Ines ALMEIDA, respondent, v. Wendy WELLS, appellant, et al., defendant. Supreme Court, Appellate Division, Second Department, New York. June 29, 2010.

Sweeney, Cohn, Stahl, Spector & Frank, White Plains, N.Y. (Julius W. Cohn of counsel), for appellant.

Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains, N.Y. (Lois N. Rosen and Stuart Kahan of counsel), for respondent.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

In an action, inter alia, for a judgment declaring that the plaintiff acquired title to certain real property by adverse possession, the defendant Wendy Wells appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered March 5, 2009, as denied her motion for summary judgment declaring that the plaintiff did not acquire the subject property by adverse possession and does not have an easement by prescription, implication, or necessity over the subject property, dismissing the fifth, sixth, seventh, and eighth causes of action insofar as asserted against her, and on her ninth counterclaim, and to cancel a notice of pendency filed by the plaintiff in connection with the subject property, and granted those branches of the plaintiff's cross motion which were for summary judgment on the first, second, third and fourth causes of action declaring that the plaintiff acquired the subject real property by adverse possession and/or has an easement by prescription, implication, and necessity over the subjectproperty, and on the eighth cause of action permanently enjoining her from interfering with the plaintiff's rights in and to the subject property.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendant Wendy Wells which was for summary judgment declaring that the plaintiff did not acquire the subject property by adverse possession, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provisions thereof granting those branches of the plaintiff's cross motion which were for summary judgment on the first, second, third, and fourth causes of action declaring that the plaintiff acquired the subject property by adverse possession and/or has an easement by prescription, implication, and necessity over the subjectproperty, and on the eighth cause of action permanently enjoining the defendant Wendy Wells from interfering with her rights in and to the subject property, and substituting therefor provisions denying those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment, inter alia, declaring that the plaintiff did not acquire the subject property by adverse possession.

The plaintiff and the defendant Wendy Wells own neighboring parcels of real property on High Street in the Town of Yorktown. From 1955 to 1991, the plaintiff's predecessors in interest used a portion of real property situated between the two subject parcels for parking. However, a portion of the property used by the plaintiff's predecessors in interest included a "paper street," and part of Wells's lot. In May 2007 Wells removed a portion of the plaintiff's driveway and a retaining wall in the contested area. Thereafter, the plaintiff commenced this action against Wells, among others, for, inter alia, a judgment declaring that she had acquired title to the contested real property by adverse possession, and/or that she had an easement by prescription, implication, or necessity over that property, which included a portion of the "paper street" and Wells's lot. In an order entered March 5, 2009, the Supreme Court, among others things, denied those branches of Wells's motion which were for summary judgment declaring that the plaintiff did not acquire the contested parcel by adverse possession and did not have an easement by prescription, implication, or necessity and dismissing the fifth, sixth, seventh, and eighth causes of action, and granted those branches of the plaintiff's cross motion which were for summary judgment on the first, second, third, and fourth causes ofaction declaring that she had acquired those rights and interests in the contested property, and on the eighth cause of action permanently enjoining Wells from interfering with those rights and interests. We modify.

"To claim title to real property by adverse possession, in accordance with the law in effect at the time this action was commenced ( see RPAPL former 522; cf. L. 2008, ch. 269, § 5), the party seeking title must demonstrate that he or she usually cultivated, improved, or substantially enclosed the land" ( Walsh v. Ellis, 64 A.D.3d 702, 703, 883 N.Y.S.2d 563; see Giannone v. Trotwood Corp., 266 A.D.2d 430, 698 N.Y.S.2d 698; see also Rowland v. Crystal Bay Constr., 301 A.D.2d 585, 586, 754 N.Y.S.2d 53). In addition, the party claiming title must demonstrate, by clear and convincing evidence, satisfaction of the following five common-law elements of the claim over the course of the applicable statutory period: (1) the possession must be hostile and under a claim of right; (2) it...