Marone v. Kally

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: Marone v. Kally, 2013 NY Slip Op 5882, 109 A.D.3d 880, 971 N.Y.S.2d 324 (N.Y. App. Div. 2013)
• Decision Date: 18 September 2013
• Parties: Freya MARONE, etc., et al., appellants, v. Charles M. KALLY, et al., respondents, et al., defendant.

109 A.D.3d 880

971 N.Y.S.2d 324

2013 N.Y. Slip Op. 05882

Freya MARONE, etc., et al., appellants,

v.Charles M. KALLY, et al., respondents, et al., defendant.

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

Sept. 18, 2013.

David H. Singer & Associates, LLP, New York, N.Y. (Christopher S. McCann of counsel), for appellants.

Lopresto & Barbieri, P.C., Astoria, N.Y. (Guy Barbieri of counsel), for respondents.

REINALDO E. RIVERA, J.P., PETER B. SKELOS, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to certain real property, and for a judgment declaring that the plaintiffs are the owners of the subject real property by adverse possession, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Strauss, J.), entered February 23, 2012, as, upon a decision of the same court (Thomas, J.H.O.) dated May 24, 2011, made after a nonjury trial, dismissed the first cause of action, which was to compel the determination of claims to certain real property and for a judgment declaring that the plaintiffs are the owners of the subject real property by adverse possession, and the third cause of action, which was to recover damages for trespass, insofar as asserted against the defendants Charles M. Kally and Mimi M. Kally.

ORDERED that the judgment is reversed insofar as appealed from, on the facts, with costs, the first and third causes of action are reinstated insofar as asserted against the defendants Charles M. Kally and Mimi M. Kally, and the matter is remitted to the Supreme Court, Queens County, for the entry of an appropriate amended judgment declaring that the plaintiffs are the owners of the subject real property by adverse possession and awarding them compensatory damages in the sum of $7,320, payable by the defendants Charles M. Kally and Mimi M. Kally.

In 2007, the plaintiffs commenced this action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to a strip of land between their real property and the real property of the defendants Charles M. Kally and Mimi M. Kally (hereinafter together the Kallys). In the complaint, the plaintiffs alleged that they became the owners of the subject strip of land by adverse possession in 2004, having erected a wall occupying the entirety of the strip in July 1994. The plaintiffs also sought to recover compensatory and punitive damages based on the Kallys' conduct of demolishing the wall in July 2007. After a nonjury trial, a Judicial Hearing Officer determined, in a written decision, that the plaintiffs failed to establish the requisite elements of adverse possession and that the complaint should be dismissed in its entirety. A judgment was thereafter entered dismissing the complaint.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;Parr v. Ronkonkoma Realty Venture I, LLC, 65 A.D.3d 1199, 1201, 885 N.Y.S.2d 522).

As an initial matter, during the trial, the plaintiffs presented evidence, in the form of a survey and the testimony of the surveyor, that the subject strip was actually on their property. The Kallys presented different surveys, purportedly showing that the strip was on their property. However, the Kallys' surveys lacked probative value, since the Kallys failed to present testimony from a land surveyor to attest to the accuracy of their surveys, or to interpret and explain them ( see Seaman v. Three Vil. Garden Club, Inc., 67 A.D.3d 889, 890, 889 N.Y.S.2d 231;Patterson v. Palmieri, 284 A.D.2d 852, 853, 727 N.Y.S.2d 197;Greenberg v. Manlon Realty, 43 A.D.2d 968, 969, 352 N.Y.S.2d 494). Nevertheless, we decline the plaintiffs' request that this Court conform the pleadings to the proof ( seeCPLR 3025[c] ) and declare that the plaintiffs are the owners of the subject strip by deed. Because the plaintiffs' cause of action to compel the determination of claims to the subject strip was based only on adverse possession, and they never moved in the Supreme Court to amend their complaint, the Kallys were not on notice of the need to present proof of their ownership of the subject strip by deed. Accordingly, the Kallys would be prejudiced by so belatedly conforming the pleadings to the proof ( see Kimso Apts., LLC v. Gandhi, 104 A.D.3d 742, 961 N.Y.S.2d 242;Matter of Nurayah J., 41 A.D.3d 477, 478, 839 N.Y.S.2d 97).

Nevertheless, we conclude that the plaintiffs demonstrated ownership to the subject strip through adverse possession. “ ‘A party seeking to obtain title by adverse possession must prove by clear and convincing evidence ... that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years' ” ( Kelly v. Bastianic, 93 A.D.3d 691, 693, 940 N.Y.S.2d 152, quoting Skyview Motel, LLC v. Wald, 82 A.D.3d 1081, 1082, 919 N.Y.S.2d 191;see Walling v. Przybylo, 7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167). Additionally, since the adverse possession claim is not founded upon a written instrument, the plaintiffs must establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either “ usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL former 522; see BTJ Realty, Inc. v. Caradonna, 65 A.D.3d 657, 658, 885 N.Y.S.2d 308;Goldschmidt v. Ford St., LLC, 58 A.D.3d 803, 805, 872 N.Y.S.2d 493).

Here, the plaintiffs demonstrated that, by building and maintaining a wall along the subject strip, which was styled to match their house and attached to a gate attached to their house, they continually possessed the subject strip, for more than 10 years, in a manner that was open and notorious, exclusive, and inimical to the rights of the Kallys' predecessor ( see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81–83, 945 N.Y.S.2d 196, 968 N.E.2d 433;Walling v. Przybylo, 7 N.Y.3d at 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167;Kelly v. Bastianic, 93 A.D.3d at 693–694, 940 N.Y.S.2d 152;Zeltser v. Sacerdote, 52 A.D.3d 824, 860 N.Y.S.2d 624;Gaglioti v. Schneider, 272 A.D.2d 436, 436–437, 707 N.Y.S.2d 239). Contrary to the Supreme Court's conclusion, there was no indication that the wall was built with the permission of the Kallys' predecessor. The plaintiffs established that, when the wall was first built, the Kallys' predecessor lodged an objection to the wall with the homeowner's association, and the plaintiffs were forced to decrease the height of the wall ( cf. Goldschmidt v. Ford St., LLC, 58 A.D.3d at 805, 872 N.Y.S.2d 493;Koudellou v. Sakalis, 29 A.D.3d 640, 641, 814 N.Y.S.2d 730). It can reasonably be inferred from this evidence that the Kallys' predecessor believed the wall to be on the plaintiffs' property; otherwise, she simply could have removed it. Finally, the plaintiffs showed that they had improved the subject strip of land. Accordingly, the plaintiffs demonstrated, by clear and convincing evidence, that they were the...