Klumpp v. Freund

• Decision Date: 12 April 2011
• Citation: 2011 N.Y. Slip Op. 03036,83 A.D.3d 790,921 N.Y.S.2d 121
• Parties: Theodore G. KLUMPP, Jr., plaintiff-respondent,v.Helen FREUND, et al., appellants-respondents,Brian Cahn, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 790

921 N.Y.S.2d 121

2011 N.Y. Slip Op. 03036

Theodore G. KLUMPP, Jr., plaintiff-respondent,

v.Helen FREUND, et al., appellants-respondents,Brian Cahn, et al., respondents-appellants.

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

April 12, 2011.

Joseph D. Mirabella, Mastic, N.Y., for appellants-respondents.Smith, Finklestein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Frank A. Isler of counsel), for respondents-appellants.Albanese & Albanese, LLP, Garden City, N.Y. (Bruce W. Migatz of counsel), for plaintiff-respondent.PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action pursuant to RPAPL article 15 to compel the determination of claims to real property and for injunctive relief, the defendants Helen Freund and Theodore Freund appeal, as limited by their brief, from (1) stated portions of an order of the Supreme Court, Suffolk County (Pines, J.), dated October 19, 2009, and (2) stated portions of an order and judgment (one paper) of the same court entered January 25, 2010, which, inter alia, (a) granted that branch of the cross motion of the defendants Brian Cahn, Lawrence Lefkowitz, and Donald Hecht, as Executors of Estate of Milton Cahn which was for summary judgment granting the Estate of Milton Cahn an easement by necessity over Parcel A, and declared that the Estate of Milton Cahn possessed such an easement, (b) denied that branch of their cross motion which was, in effect, for summary judgment declaring that the Estate of Milton Cahn did not have an easement over Parcel A, and (c) granted that branch of the plaintiff's motion which was for summary judgment granting the plaintiff a prescriptive easement over Parcels A and B, and declaring that the plaintiff possessed such an easement, and the defendants Brian Cahn, Lawrence Lefkowitz, and Donald Hecht, as Executors of Estate of Milton Cahn cross-appeal from (1) stated portions of the order dated October 19, 2009, and (2) stated portions of the order and judgment (one paper) entered January 25, 2010, which, inter alia, (a) granted that branch of the plaintiff's motion which was for summary judgment declaring him to be the owner by adverse possession of Parcel C, and declared him to be the owner, (b) in effect, denied that branch of its cross motion which was for summary judgment declaring that the plaintiff had no ownership interest in Parcel C, and (c) granted that branch of the plaintiff's motion which was for summary judgment awarding him a prescriptive easement over Parcels A and B, and declared that the plaintiff possessed such an easement.

ORDERED that the appeal and cross appeal from the order dated October 19, 2009, are dismissed; and it is further,

ORDERED that the order and judgment entered January 25, 2010, is modified, on the law, by (1) deleting the provisions thereof granting that branch of the plaintiff's motion which was for summary judgment declaring him to be the owner by adverse possession of Parcel C, and declaring him to be the owner, and substituting therefor a provision denying that branch of the plaintiff's motion, (2) deleting the provisions thereof, in effect, denying that branch of the cross motion of the defendants Brian Cahn, Lawrence Lefkowitz, and Donald Hecht, as Executors of Estate of Milton Cahn which was for summary judgment declaring that the plaintiff had no ownership interest in Parcel C, and substituting therefor provisions granting that branch of the cross motion and declaring that the plaintiff has no ownership interest in Parcel C, (3) deleting the provisions thereof granting that branch of the cross motion of the defendants Brian Cahn, Lawrence Lefkowitz, and Donald Hecht, as Executors of Estate of Milton Cahn which was for summary judgment granting it an easement by necessity over Parcel A, and declaring that the Estate of Milton Cahn possessed such an easement, and substituting therefor a provision denying that branch of the cross motion, (4) deleting the provision thereof, in effect, denying that branch of the cross motion of the defendants Helen Freund and Theodore Freund which was, in effect, for summary judgment declaring that the Estate of Milton Cahn did not possess an easement over Parcel A, and substituting therefor provisions granting that branch of the cross motion, and declaring that the Estate of Milton Cahn does not possess such an easement, and (5) deleting the final decretal paragraph awarding costs to the plaintiff; as so modified, the order and judgment entered January 25, 2010, is affirmed insofar as appealed and cross-appealed from, the order dated October 19, 2009, is modified accordingly, and the matter is remitted to the Supreme Court, Suffolk County for the entry of an appropriate amended judgment; and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs, payable by the plaintiff.

The appeal and cross appeal from the intermediate order dated October 19, 2009, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment entered January 25, 2010, 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 and cross appeal from the order dated October 19, 2009, are brought up for review and have been considered on the appeal from the order and judgment entered January 25, 2010 ( see CPLR 5501 [a][1] ).

Under the law as it existed at the time this action was commenced, the plaintiff, whose claim of adverse possession was not based upon a written document, was required to demonstrate that he “ ‘usually cultivated, improved, or substantially enclosed’ ” Parcel C, the real property he claims to have acquired by adverse possession ( Asher v. Borenstein, 76 A.D.3d 984, 986, 908 N.Y.S.2d 90, quoting Walsh v. Ellis, 64...