Levy v. Kurpil
| Decision Date | 27 December 1990 |
| Citation | 168 A.D.2d 881,564 N.Y.S.2d 556 |
| Parties | Suzanne LEVY, formerly known as Suzanne Grund, Respondent, v. Samuel KURPIL et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Drew, Garigliano & Davidoff (Brian T. Edwards, of counsel), Monticello, for appellants.
Gaiman & Krutman (Robert Krutman, of counsel), Woodridge, for respondent.
Before MAHONEY, P.J., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.
Appeal from a judgment of the Supreme Court (Williams, J.), entered November 13, 1989 in Sullivan County, which, in an action pursuant to RPAPL article 15, determined plaintiff to be the title owner of certain property located in the Town of Liberty.
This litigation concerns a dispute between adjoining neighbors over the ownership of a certain triangular-shaped area of land bordering between two residential properties in the Town of Liberty, Sullivan County. Plaintiff commenced this action pursuant to RPAPL article 15 to determine ownership of the property in dispute. The evidence at trial was conflicting and Supreme Court, sitting without a jury, resolved the credibility questions in favor of plaintiff, ruled that plaintiff had established her ownership by adverse possession and awarded judgment in her favor. This appeal by defendants followed.
The questions presented on this appeal are (1) whether Supreme Court correctly resolved questions of credibility in favor of plaintiff and against defendants, and (2) whether plaintiff proved the elements required to establish her adverse possession of the property in dispute. The questions are answered in the affirmative and the judgment of Supreme Court should therefore be affirmed.
Defendants' argument that Supreme Court erroneously resolved questions of credibility in favor of plaintiff and that this court should make its own factual findings in favor of defendants and dismiss the complaint is without merit. This court does have the power to make new findings of fact in reviewing a judgment of Supreme Court in cases such as the present (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145), and "[i]f it appears on all the credible evidence that a different finding or a finding different from that of the court is not unreasonable, then this court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from such testimony" (Lucenti v. Cayuga Apts., 59 A.D.2d 438, 442, 400 N.Y.S.2d 194). This court may then "grant the judgment which upon the evidence should have been granted by the trial court" (id.). Nevertheless, in reviewing a nonjury trial, it has been found "judicious to defer to the trier of facts where * * * the credibility of witnesses whom the trial court had the opportunity to observe in the course of testimony is to be determined" (Town of Ulster v. Massa, 144 A.D.2d 726, 727-728, 535 N.Y.S.2d 460, lv. denied 75 N.Y.2d 707, 554 N.Y.S.2d 476, 553 N.E.2d 1024; see, Oneonta Dress Co. v. Ozona-USA, 120 A.D.2d 899, 901, 503 N.Y.S.2d 167).
In the case at bar, Supreme Court found that plaintiff cared for and used the property in dispute as her own. Furthermore, based upon the surveyor's testimony that when he told defendants in 1981 that the survey indicated they were the owners of the property they were surprised, Supreme Court concluded that defendants did not realize they owned the property. In view of the above findings, the inconsistencies and discrepancies in defendants' testimony, the clear testimony of the surveyor and the fact that defendants ignored Supreme Court's interim order (directing both parties to leave the disputed property alone until the matter was resolved) by cutting down a tree, painting a white line and blocking the access of plaintiff's agents to the property, Supreme Court could reasonably resolve the material credibility issues in favor of plaintiff. Accordingly, we choose to defer to the decision of the trier of facts who...
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