D'Argenio v. Ashland Bldg., LLC

• Decision Date: 09 November 2010
• Citation: D'Argenio v. Ashland Bldg., LLC, 910 N.Y.S.2d 550, 78 A.D.3d 758 (N.Y. App. Div. 2010)
• Parties: Dominick D'ARGENIO III, et al., appellants, v. ASHLAND BUILDING, LLC, respondent.
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 550

78 A.D.3d 758

Dominick D'ARGENIO III, et al., appellants,

v.ASHLAND BUILDING, LLC, respondent.

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

Nov. 9, 2010.

Eaton & Torrenzano, LLP, Brooklyn, N.Y. (Christopher J. Brunetti of counsel), for appellants.

John Z. Marangos, Staten Island, N.Y., for respondent.

STEVEN W. FISHER, J.P., MARK C. DILLON, ANITA R. FLORIO, and PLUMMER E. LOTT, JJ.

In an action pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiffs appeal from (1) an order of the Supreme Court, RichmondCounty (Fusco, J.), dated September 4, 2009, which denied their motion to reopen the trial and introduce rebuttal testimony, and (2) a judgment of the same court dated December 10, 2009, which, upon a decision of the same court dated November 10, 2009, made after a nonjury trial, is in favor of the defendant and against them on the cause of action alleging adverse possession, directing them to remove an encroaching fence from the subject real property.

ORDERED that the appeal from the order dated September 4, 2009, is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the order dated September 4, 2009, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order dated September 4, 2009, are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, bearing in mind that due regard must be given to the decision of a trial judge who was in the position to assess the evidence and the credibility of witnesses ( see Golding v. Gottesman, 41 A.D.3d 430, 837 N.Y.S.2d 719; Tornheim v. Kohn, 31 A.D.3d 748, 818 N.Y.S.2d 491).

Here, the trial court did not err in finding that the plaintiffs had failed to establish the elements of adverse possession. The plaintiffs failed to demonstrate that their use of the subject premises was hostile and under a claim of right, and continuous for 10 years. The trial court found that the plaintiffs were made aware during...