Salzberg v. Sena

• Decision Date: 13 April 2022
• Docket Number: 2018–07979, 2019–04700,Index No. 50399/16
• Citation: 204 A.D.3d 853,166 N.Y.S.3d 264
• Parties: Charles Andrew SALZBERG, et al., appellants, v. Kenneth SENA, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 853
166 N.Y.S.3d 264

Charles Andrew SALZBERG, et al., appellants,
v.
Kenneth SENA, et al., respondents, et al., defendants.

2018–07979, 2019–04700
Index No. 50399/16

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

Argued—December 10, 2021
April 13, 2022

166 N.Y.S.3d 265

Michael B. Kramer, New York, NY (Peter T. Salzler of counsel), for appellants.

Dorf & Nelson LLP, Rye, NY (Jonathan B. Nelson of counsel), for respondents.

COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, WILLIAM G. FORD, JJ.

DECISION & ORDER

204 A.D.3d 854

In an action, inter alia, for a judgment declaring that the plaintiffs are the owners of certain real property by adverse possession, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated June 4, 2018, and (2) a judgment of the same court (Charles D. Wood, J.) dated March 15, 2019. The order granted the motion of the defendants Kenneth Sena and Joseph Mazzaferro for summary judgment dismissing the complaint insofar as asserted against them, on their second counterclaim, for a judgment declaring that they are the owners of the subject real property, and on the issue of liability on their first and third counterclaims. The judgment, upon the order, and upon an amended decision of the same court (Charles D. Wood, J.) dated January 8, 2019, made after an inquest on the issue of damages, is in favor of those defendants and against the plaintiffs, in effect, dismissing the complaint insofar as asserted against them and awarding them the principal sum of $50,250 on their first and third counterclaims.

By order to show cause dated June 25, 2021, the parties to the appeals were directed to show cause before this Court why the appeal from the order dated June 4, 2018, should or should not be dismissed on the ground that the right of direct appeal from that order terminated upon entry in the above-entitled action of the judgment. By decision and order on motion dated August 25, 2021, the Court's motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the order to show cause and the papers filed in response thereto, and upon the argument of the appeals, it is

ORDERED that the Court's motion to dismiss the appeal from the order dated June 4, 2018, is granted; and it is further,

ORDERED that the appeal from the order dated June 4, 2018, is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, the motion of the defendants Kenneth Sena and Joseph Mazzaferro

166 N.Y.S.3d 266

for summary judgment dismissing the complaint insofar as asserted against them, on their second counterclaim, for a judgment declaring that they are the owners of the subject real property, and on the issue of liability on their first and third counterclaims is denied, the complaint is reinstated insofar as asserted against those defendants, and the order is modified accordingly; and it is further,

204 A.D.3d 855

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiffs and the defendants Kenneth Sena and Joseph Mazzaferro (hereinafter together the defendants) own adjacent parcels of real property in Croton–on–Hudson. The plaintiffs purchased their property in 2011 from Daniel Scalzi, who had previously owned the property jointly with his former wife, Victoria Manes, until she transferred ownership to him in 2004. According to Scalzi, in 1987, he spent $12,000 to clear a portion of land along the common boundary of the properties (hereinafter the disputed strip), which at that time consisted of "unusable forest-like area," and to erect a split rail fence on the disputed strip, so as to integrate it into his lawn. Scalzi asserted that, thereafter and for the duration of his ownership of the property, he cultivated and maintained the disputed strip, which also included a portion of a barbeque pit that had been built onto his property by a predecessor. Scalzi admitted that during the process of clearing the disputed strip and erecting the fence, he realized, upon his discovery of concrete monuments in the ground, that he was over the boundary line of his property and encroaching somewhat onto the neighboring property. However, Scalzi asserted that he never advised the then owners of the defendants' property or asked their permission to use a portion of their land.

In April 2014, the defendants purchased their property from Barry Friedman and Patricia Pastor. In November or December 2015, the plaintiffs repaired and lengthened the split rail fence, at which point, the defendants asserted that the fence was on their property and demanded that the plaintiffs remove the entire fence. In December 2015, the defendants had a contractor remove the fence and the plaintiffs cut down a tree from the disputed strip.

The plaintiffs thereafter commenced this action, seeking, among other things, a...