Btj Realty, Inc. v. Caradonna

• Decision Date: 25 August 2009
• Docket Number: 2007-08399.,2008-02790.
• Citation: 65 A.D.3d 657,2009 NY Slip Op 06308,885 N.Y.S.2d 308
• Parties: BTJ REALTY, INC., et al., Appellants, v. JOSEPH CARADONNA et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

65 A.D.3d 657

885 N.Y.S.2d 308

2009 NY Slip Op 06308

BTJ REALTY, INC., et al., Appellants, v. JOSEPH CARADONNA et al., Respondents, et al., Defendants.

2007-08399.

2008-02790.

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

Decided August 25, 2009.

In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiffs appeal (1) from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered August 3, 2007, as granted those branches of the motion of the defendant Isaac Kotlowicz and the cross motion of the defendant Joseph Caradonna which were, in effect, for summary judgment declaring that the plaintiffs did not acquire title, by adverse possession, of property located on certain portions of the paper street Nepperhan Avenue where that street abuts properties owned by the defendants Joseph Caradonna and Corporate Car Real

Estate, Inc., and (2), as limited by their brief, from so much of an order of the same court entered February 20, 2008, as, upon reargument, granted that branch of the motion of the defendant Isaac Kotlowicz which was, in effect, for summary judgment declaring that he has a right of ingress and egress over the subject portions of the paper streets known as Nepperhan Avenue and Buckout Street.

Ordered that the orders are affirmed insofar as appealed from, with one bill of costs, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment declaring that the plaintiffs did not acquire title, by adverse possession, to the property located on certain portions of the paper street Nepperhan Avenue where that street abuts properties owned by the defendants Joseph Caradonna and Corporate Car Real Estate, Inc., and that the defendant Isaac Kotlowicz had a right of ingress and egress over the subject portions of the paper streets known as Nepperhan Avenue and Buckout Street.

To claim title to real property by adverse possession on a claim not based upon a written instrument, in accordance with the law in effect at the time this action was commenced (see RPAPL former 522 [1], [2]; cf. L 2008, ch 269, § 5; Walsh v Ellis, 64 AD3d 702 [2009]), the party seeking title must show that the parcel was either "usually cultivated or improved" or "protected by a substantial inclosure" (RPAPL former 522 [1], [2]). In addition, a party must satisfy the common-law requirement of demonstrating that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for a period of 10 years or more (see Walling v Przybylo, 7 NY3d 228, 232 [2006]; East Hampton Livestock Corp. v Fleming, 53 AD3d 641 [2008]; Oistacher v Rosenblatt, 220 AD2d 493, 494 [1995]).

The defendants Joseph Caradonna and Isaac Kotlowicz established their prima facie entitlement to judgment as a matter of law by showing that the plaintiffs did not meet the statutory or common-law requirements to obtain title to the disputed property by adverse possession. In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Perfito v Einhorn, 62 AD3d 846, 848 [2009]; Rowland v Crystal Bay Constr., 301 AD2d 585 [2003]; Giannone v Trotwood Corp., 266 AD2d 430 [1999]).

The plaintiffs' contention that they obtained an easement by prescription for storing vehicles and equipment over that portion of the paper street Nepperhan Avenue where that street abuts the real property owned by Caradonna was not raised before the Supreme Court and, therefore, is not properly before this Court on appeal (see Best Ct. Reporting Serv. v MGM Ct. Reporting Serv., 248...