Brooks v. Anderson
| Decision Date | 31 August 1981 |
| Citation | 82 A.D.2d 531,442 N.Y.S.2d 133 |
| Parties | Henry T. BROOKS, et al., Appellants, v. Marguerite ANDERSON, et al., Respondents; et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Richard I. Cantor, Poughkeepsie, for appellants.
Richard I. Goldsand, Carmel, for respondents.
Before MOLLEN, P. J., and HOPKINS, TITONE and WEINSTEIN, JJ.
Section 501 of the Real Property Actions and Proceedings Law, which appears in the article devoted to adverse possession, reads as follows: "An entry upon real property is not sufficient or valid as a claim unless an action is commenced thereupon within one year after the making thereof and within ten years after the time when the right to make it descended or accrued." Admittedly, the meaning of this statute is not entirely clear. Accordingly, we herewith set forth our views as to the proper interpretation of this section.
The dispute which gave rise to this litigation concerns title to certain real property in the Town of Dover in Dutchess County. The appellants, Henry and Anna Brooks, brought this action in 1980, for a determination of the validity of their claim to the subject parcel, pursuant to article 15 of the Real Property Actions and Proceedings Law. Respondents Marguerite Anderson and Paul Clarke interposed an affirmative defense and counterclaim claiming adverse possession of the parcel, in that they possessed and occupied the land since 1967 (see CPLR 212, subd. Appellants denied the elements of adverse possession, but, in addition, relying on the previously quoted section 501 of the Real Property Actions and Proceedings Law, they moved for summary judgment dismissing the affirmative defense and counterclaim alleging that the adverse possession claim was time-barred. They asserted that, pursuant to the statute, "an action commenced * * * within one year after the making thereof". Thus, plaintiffs contend that the expiration of the 10-year period of possession upon which a claim to title by adverse possession must be based marks the commencement of the one year statutory period. Therefore, they reasoned, since the claim to title by adverse possession ripened in 1977, and the counterclaim alleging such adverse possession was not brought until 1980, section 501 acts as a Statute of Limitations barring the affirmative defense and counterclaim.
Special Term denied the motion for summary judgment dismissing the counterclaim and affirmative defense, holding that section 501 does not constitute a bar to the respondents' claim. We affirm that order, and in so doing, we will explicate the meaning of section 501 and show why it does not apply to the proceeding before the court.
We begin by noting that "theory upon which adverse possession rests is that the adverse possessor may acquire title at such time as an action in ejectment by the record owner would be barred by the Statute of Limitations" (Reiter v. Landon Homes, Inc., 31 A.D.2d 538, 539, 295 N.Y.S.2d 103; see also, Deering v. Riley, 38 App.Div. 164, 56 N.Y.S. 704, affd. 167 N.Y. 184, 60 N.E. 447). The Statute of Limitations in question is 10 years (see CPLR 212, subd. it follows that title through adverse possession of a parcel of real property is acquired by possession of that parcel, as possession is defined in article 5 of the Real Property Actions and Proceedings Law, for a period of 10 years.
We turn now to section 501 of the Real Property Actions and Proceedings Law. It speaks of an "entry" by some unspecified entity upon real property, and states that in order for this entry to be "sufficient or valid as a claim", an action must be commenced thereupon both "within one year after the making thereof" and "within ten years after the time when the right to make it descended or accrued." Neither the identity of the entity making the entry, nor the kind of claim for which it obviously serves as a predicate, is set forth. Does the statute refer to an entry by an adverse possessor upon property and his claim for fee simple title based upon his adverse possession? Or does it refer to an entry by the record owner upon his own property in an effort to eject the adverse possessor therefrom?
Appellants would have us adopt the former interpretation, that is, that the entry in question is by the adverse possessor. But even assuming for the moment that such were indeed the case, we still cannot agree that the statute says what appellants say it does. They claim that the statute requires that an action to convert title by adverse possession into record ownership must be brought within one year of the ripening of adverse possession into title or, in other words, some time between 10 and 11 years of the commencement of adverse possession. But if so, the additional qualification that the action be commenced "within ten years after the time when the right to make it descended or accrued" is meaningless. Rather, if the entry in question were by the adverse possessor, we feel that the statute would mean the following: that an entry upon property (after at least nine years of adverse possession) must lead to an action for fee simple title within one year of the entry (and after ten years of adverse possession), but in no case may the action be brought more than ten years after the right to bring it accrued (i. e., more than 20 years after the commencement of adverse possession).
Such would be our interpretation of the statute if the entry referred to were by the adverse possessor. We do not adopt that interpretation of the statute, because we hold that the entry contemplated by the statute is by the record owner, and the action to be commenced thereupon is one in ejectment.
This holding is based on several considerations. First, the term "entry," at least in the context of adverse possession, seems to be a term of art denoting an occupation of land by the record owner with the intention of ousting the adverse possessor from his property (see Bonebrake v. Flourney, 133 Okl. 101, 271 P. 658; Riley v. People, 29 Ill.App. 139; 2 C.J.S. Adverse Possession, § 171; 3 Am.Jur.2d, Adverse Possession, §§ 89-90). In fact, this court stated, in City of New York v. Coney Island Fire Dept., 259 App.Div. 286, 289, 18 N.Y.S.2d 923, affd. 285 N.Y. 535, 32 N.E.2d 827 that "statutory equivalent of entry is the action of ejectment." In light of this, we do not find persuasive the use of the word "entered" in section 511 of the Real Property Actions and Proceedings Law, where the context clearly indicates that the reference is to an act by the adverse possessor.
Another basis for our definition of the word "entry" in section 501 is...
To continue reading
Request your trial
-
Talmage v. RONALD ALTMAN TRUST, CV 92-2029.
...of Tonawanda v. Ellicott Creek Homeowners Ass'n, 86 A.D.2d 118, 449 N.Y.S.2d 116, 118 (4th Dep't 1982); Brooks v. Anderson, 82 A.D.2d 531, 442 N.Y.S.2d 133, 135-36 (2d Dep't 1981). However, a claimant in possession for less than the prescriptive period may tack his possession to a predecess......
-
McNamara v. Lake in the Sky Inc.
...In view of the direct relationship between the doctrine of adverse possession and the Statute of Limitations (see, Brooks v. Anderson, 82 A.D.2d 531, 532, 442 N.Y.S.2d 133), there can be little doubt that defendant was required to plead the matter in its answer (see, CPLR 3018[b] ). An acti......