McMahon v. Thornton

Decision Date21 January 2010
Docket Number506742
Citation69 A.D.3d 1157,897 N.Y.S.2d 247,2010 NY Slip Op 426
PartiesMICHAEL McMAHON, Appellant, v. JOHN THORNTON et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Appeal from an order of the Supreme Court(Lebous, J.), entered July 8, 2008 in Broome County, which granted defendants' motion for, among other things, summary judgment dismissing the complaint.

Spain, J.P.

This action arises out of a property dispute between adjoining landowners in the Town of Conklin, Broome County.Defendants bought the property adjoining plaintiff's property in 2000.In 2004 or thereafter, plaintiff made improvements to his property, expanding the width of the driveway and adding a garden.In preparation of constructing a shed on their property, defendants had their property surveyed in 2007 and discovered that plaintiff's driveway and garden encroached upon their land.Defendants immediately informed plaintiffs of the encroachments and assert that plaintiff agreed to take remedial steps.

Shortly thereafter, defendants decided to remove several evergreen trees located near the border between the parties' properties.After defendants removed the first tree, plaintiff commenced this action seeking declaratory relief and damages and obtained a temporary restraining order preventing defendants from further removing trees.In his complaint, plaintiff asserted ownership of the trees and the land on which they are located by adverse possession, but provided no factual allegations supporting that claim other than "[t]hat these trees are owned by the [p]laintiff by adverse possession as he has resided at the present location for a period in excess of twenty years and has always assumed that these trees were jointly owned by himself and the next door neighbors."

Defendants answered and pleaded counterclaims based on the encroachment of plaintiff's garden and driveway.Upon a motion by defendants for summary judgment, Supreme Court denied, without prejudice, that portion of defendants' motion seeking summary judgment dismissing plaintiff's adverse possession claim, but granted summary judgment to defendants on their counterclaim.The court thus directed plaintiff to remove the encroachments and restore the proper boundary at his own cost by a set deadline.

After plaintiff failed to remove the encroachments, defendants again moved for summary judgment seeking, among other things, counsel fees and to have plaintiff held in contempt of court for failing to comply with the previous order.Supreme Court granted this motion, dismissing plaintiff's entire complaint, giving him 60 additional days to remove the encroachments and reserving decision on whether to award counsel fees following a hearing.Plaintiff appeals and we now affirm.

Summary judgment dismissing the adverse possession claim was properly granted.*To establish ownership of property by adverse possession, the party claiming ownership is required to demonstrate by clear and convincing evidence that "the character of the possession is `hostile and under a claim of right, actual, open and notorious, exclusive and continuous' for the statutory period of 10 years"(Ray v Beacon Hudson Mtn. Corp.,88 NY2d 154, 159[1996][citation omitted], quotingBrand v Prince,35 NY2d 634, 636[1974];seeRPAPL 501).Here, defendants met their initial burden of demonstrating entitlement to judgment as a matter of law by providing documentation establishing that plaintiff's alleged possession was neither of a nature or duration sufficient to sustain an adverse possession claim (seePatterson v Palmieri,307 AD2d 668, 668[2003], lv dismissed1 NY3d 546[2003]).Specifically, through a survey and the affidavits of their predecessors in interest and neighbors, defendants demonstrated that the pine trees were planted on their property and have been maintained by defendants or their predecessors in interest.

In response, plaintiff failed to raise a triable issue of fact.His focus on appeal is that conflicting statements made by Kevin Dorin, a predecessor in interest of defendants, create an issue of fact on his adverse possession claim which makes summary judgment inappropriate.Specifically, plaintiff relies on a signed writing by Dorin wherein Dorin acknowledges that plaintiff cared for the trees while Dorin owned the property now owned by defendants.However, even when we take this writing as fact, it is undisputed that Dorin owned the property for less than 10 years.Plaintiff has failed to allege any actions he took before or after Dorin's ownership that could sustain a claim of adverse possession.Indeed, his own affidavit alleges only that he believed he shared ownership in the trees and is insufficient, on its face, to demonstrate exclusivity or hostility.Simply put, plaintiff did not allege facts sufficient to demonstrate adverse possession and, thus, summary judgment was properly granted (seeRopitzky v Hungerford,27 AD3d 1031, 1032-1033[2006];Andersen v Mazza,258 AD2d 726, 727-728[1999];Winchell v Middleton,226 AD2d 1009, 1010[1996]).

Plaintiff's reliance, on appeal, on the theory of "boundary line by acquiescence," better known as the doctrine of practical location (seeRobert v Shaul,62 AD3d 1127, 1127-1128[2009]), is equally...

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25 cases
  • Waterview Towers, Inc. v. 2610 Cropsey Dev. Corp.
    • United States
    • New York Supreme Court
    • October 31, 2016
    ...doctrine to apply, there must be a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is ‘definitely and equally known, understood and settled.’ " (McMahon v. Thornton, 69 AD3d 1157, 1160 [2010] ).Based on the evidence adduced at trial, including testimony, the Court's review of the photographs in evidence, and the Court's personal observation of the Contested Property on its December 2014 sight visit, the property...
  • Gibbs v. Porath
    • United States
    • New York Supreme Court — Appellate Division
    • October 16, 2014
    ...872 N.Y.S.2d 224 [2009], lv. denied 12 N.Y.3d 709, 2009 WL 1259028 [2009] [internal quotation marks and citation omitted]; accord Robert v. Shaul, 62 A.D.3d 1127, 1128, 879 N.Y.S.2d 240 [2009] ; see McMahon v. Thornton, 69 A.D.3d 1157, 1160, 897 N.Y.S.2d 247 [2010] ). “[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood...
  • EState of Becker v. Murtagh
    • United States
    • New York Supreme Court — Appellate Division
    • July 20, 2010
    ...contention, they failed to establish, prima facie, that the doctrine of "practical location" of a boundary line was applicable, as there was no proof of a clear demarcation of a definite believed boundary line ( see McMahon v. Thornton, 69 A.D.3d 1157, 1160, 897 N.Y.S.2d 247; Nickerson v. Genuine Hardwoods, Inc., 4 A.D.3d 842, 843, 771 N.Y.S.2d 762; Riggs v. Benning, 290 A.D.2d 716, 717-718, 736 N.Y.S.2d 474; Hadix v. Schmelzer, 186 A.D.2d 239, 588 N.Y.S.2d 337)....
  • DMPM Prop. Mgt. v. Mastroianni
    • United States
    • New York Supreme Court — Appellate Division
    • March 03, 2011
    ...was open, notorious, exclusive, continuous and under a claim of right ( see RPAPL 501; Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 159, 643 N.Y.S.2d 939, 666 N.E.2d 532 [1996]; McMahon v. Thornton, 69 A.D.3d 1157, 1159, 897 N.Y.S.2d 247 [2010] ). Specifically, the record reflects that, for 17 years, defendants exclusively occupied the disputed property and have undertaken acts consistent with ownership, including the payment of taxes, landscaping and maintenance, and have openly...
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