Lindbergh v. Shlo 54, LLC

• Decision Date: 06 May 2015
• Docket Number: 2012-10279, 2013-10496
• Citation: 2015 N.Y. Slip Op. 03807,9 N.Y.S.3d 105,128 A.D.3d 642
• Parties: Edith LINDBERGH, respondent, v. SHLO 54, LLC, et al., appellants.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 642

9 N.Y.S.3d 105

2015 N.Y. Slip Op. 03807

Edith LINDBERGH, respondent

v.SHLO 54, LLC, et al., appellants.

2012-10279, 2013-10496

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

May 6, 2015.

Jaffe, Ross & Light, LLP, New York, N.Y. (Steven R. Miller of counsel), for appellants.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that the plaintiff acquired title to certain real property by adverse possession, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated August 22, 2012, as granted the plaintiff's motion, in effect, for summary judgment on the first cause of action declaring that the plaintiff is the owner of certain real property by adverse possession, and denied those branches of their cross motion pursuant to CPLR 3211(a) which were to dismiss the first cause of action and the plaintiff's demand for punitive damages, and (2) from an order of the same court dated August 20, 2013, which denied their motion for leave to renew their opposition to the plaintiff's motion and to renew that branch of their cross motion pursuant to CPLR 3211(a) which was to dismiss the first cause of action, and for sanctions pursuant to 22 NYCRR 130–1.1.

ORDERED that the order dated August 20, 2013, is modified, on the law, by deleting the provision thereof denying those branches of the defendants' motion which were for leave to renew their opposition to the plaintiff's motion, in effect, for summary judgment on the first cause of action declaring that the plaintiff is the owner of certain real property by adverse possession, and to renew that branch of their cross motion which was pursuant to CPLR 3211(a) to dismiss the first cause of action, and substituting therefor a provision granting those branches of the defendants' motion, and, upon renewal, vacating the determinations in the order dated August 22, 2012, granting the plaintiff's motion, in effect, for summary judgment on the first cause of action declaring that the plaintiff is the owner of certain real property by adverse possession and denying that branch of the defendants' cross motion pursuant to CPLR 3211(a) which was to dismiss the first cause of action, and thereupon, denying the plaintiff's motion and granting that branch of the defendants' cross motion; as so modified, the order dated August 20, 2013, is affirmed; and it is further,

ORDERED that the appeal from so much of the order dated August 22, 2012, as granted the plaintiff's motion, in effect, for summary judgment on the first cause of action declaring that the plaintiff is the owner of certain real property by adverse possession, and denied that branch of the defendants' cross motion pursuant to CPLR 3211(a) which was to dismiss the first cause of action, is dismissed as academic in light of our determination of the appeal from the order dated August 20, 2013; and it is further,

ORDERED that the order dated August 22, 2012, is affirmed insofar as reviewed; and it is further,ORDERED that one bill of costs is awarded to the defendants.

The plaintiff owns real property (hereinafter the Lindbergh property) located at 1346 East 27th Street in Brooklyn. The defendant SHLO 54, LLC (hereinafter the LLC), owns adjacent real property (hereinafter the LLC property) located at 1350 East 27th Street. The plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 for a judgment declaring that she acquired title to a strip of land located along the shared boundary of the properties by adverse possession.

On January 25, 2012, prior to the defendants' answer to the complaint, the plaintiff moved, among other things, in effect, for summary judgment on her first cause of action declaring that she is the owner of the disputed real property by adverse possession. The defendants cross-moved pursuant to CPLR 3211(a), inter alia, to dismiss the first cause of action. In the order appealed from dated August 22, 2012, the Supreme Court granted the plaintiff's motion, in effect, for summary judgment on her first cause of action and denied the defendants' cross motion.

Thereafter, the defendants moved for leave to renew, inter alia, that branch of their cross motion pursuant to CPLR 3211(a) which was to dismiss the first cause of action. In support of 7th motion, the defendants submitted a “Boundary Line Agreement” dated October 19, 1988, wherein the plaintiff and the LLC's predecessor in title agreed to “ratify in all respects the true boundary lines of the [LLC property] as shown on the attached copy of the survey,” dated December 27, 1961. Further, the parties agreed therein that the plaintiff “shall acquire no prescriptive rights to use or occupy any portion of the [LLC property].” In the order appealed from dated August 20, 2013, the Supreme Court denied the defendants' motion for leave to renew.

“A motion for summary judgment may not be made before issue is joined (CPLR 3212[a] ) and the requirement is strictly adhered to” (City of Rochester v. Chiarella, 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174, 479 N.E.2d 810 ). Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment, since it was made before issue was joined (see CPLR 3212 [a]; Gaskin v. Harris, 98 A.D.3d 941,...