Giannone v. Trotwood Corp.

• Decision Date: 22 November 1999
• Parties: Nicholas GIANNONE, et al., appellants, v. TROTWOOD CORPORATION, et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 698

698 N.Y.S.2d 698

Nicholas GIANNONE, et al., appellants, v. TROTWOOD CORPORATION, et al., respondents.

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

Nov. 22, 1999.

Elliot M. Rudick, New York, N.Y., for appellants.

Tenzer Greenblatt, LLP, New York, N.Y. (Edward L. Sadowsky of counsel), for respondents Trotwood Corporation and M.O. Associates, L.P.

Pryor Cashman Sherman & Flynn, New York, N.Y. (Joseph Z. Epstein of counsel), for respondent Queens West Development Corporation.

SONDRA MILLER, J.P., THOMAS R. SULLIVAN, GABRIEL M. KRAUSMAN and HOWARD MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Schmidt, J.), entered July 8, 1998, which denied their motion for summary judgment, granted the separate cross motions of the defendants Trotwood Corporation and M.O. Associates, L.P., and the defendant Queens West Development Corporation for summary judgment dismissing the complaint insofar as asserted against them, and dismissed the complaint.

ORDERED that the order and judgment is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

A party seeking summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v. Gervasio, 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). A prima facie showing shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact (see, Alvarez v. Prospect Hosp., supra).

A party seeking to obtain title by adverse possession on a claim not based upon a written instrument must produce evidence that the subject premises were either "usually cultivated or improved" or "protected by a substantial inclosure" (RPAPL 522, ). That party must also establish, by clear and convincing evidence, the common-law requirements of hostile possession, under a claim of right, which was actual, open and notorious, and exclusive, and continuous for the statutory period (see, Brand v. Prince, 35 N.Y.2d 634, 364 N.Y.S.2d 826, 324 N.E.2d 314; Manhattan School of Music v. Solow, 175 A.D.2d 106, 571 N.Y.S.2d 958). The plaintiffs' proof was insufficient to meet this standard.

The plaintiffs contend that they acquired title by adverse possession to two sections of land (hereinafter Sections 1 and 2) owned of record by M.O. Associates, L.P., and another section of land (hereinafter Section 3) owned of record by Queens West Development...