Schulz v. Gilmore

• Decision Date: 27 October 2021
• Docket Number: Index No. 23198/03,2018–01806
• Citation: 155 N.Y.S.3d 596,198 A.D.3d 994
• Parties: Donald SCHULZ, et al., appellants, v. Jean GILMORE, et al., respondents.
• Court: New York Supreme Court — Appellate Division

198 A.D.3d 994

155 N.Y.S.3d 596

Donald SCHULZ, et al., appellants,

v.Jean GILMORE, et al., respondents.

2018–01806

Index No. 23198/03

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

Argued—October 1, 2021

October 27, 2021

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (Christopher B. Abbott of counsel), for appellants.

Wickham, Bressler & Geasa, P.C., Mattituck, N.Y. (Eric J. Bressler of counsel), for respondents.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to determine claims to certain real property, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (W. Gerard Asher, J.), entered January 3, 2018. The judgment, upon a decision of the same court dated December 19, 2017, made after a nonjury trial, is in favor of the defendants and against the plaintiffs on their counterclaim, inter alia, declaring that the defendant William Gilmore is the owner of certain real property, and dismissing the amended complaint.

ORDERED that the judgment is affirmed, with costs.

In 2002, the plaintiffs purchased property located at Center and Front Streets, in South Jamesport (hereinafter the plaintiffs’ property), identified as Section 92, Block 04, Lot 1, on the Suffolk County tax map. Directly to the north of the plaintiffs’ property, across Front Street, is property belonging to nonparty Linda Gianelli (hereinafter the Gianelli property). The defendants own an inverted "L" shaped property, acquired in 1966, that borders the Gianelli property to the north and the west. The plaintiffs’ property is situated south and southeast of the defendants’ property. The Great Peconic Bay is to the west and south of the plaintiffs’ and the defendants’ properties.

In 2003, the plaintiffs commenced this action pursuant to RPAPL article 15 to determine claims to certain real property located in South Jamesport, which they identified in their amended complaint as the "Accreted Parcel" and the "Red Parcel." In their answer, the defendants asserted a counterclaim seeking a judgment declaring that they are the lawful owners of the disputed property by deed, or, in the alternative, by adverse possession. After a nonjury trial, the Supreme Court, inter alia, determined that the defendants met the requirements to obtain title to the disputed property by adverse possession and dismissed the amended complaint.

"In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial judge had the advantage of seeing and hearing the witnesses" ( Bratone v. Conforti–Brown, 150 A.D.3d 1068, 1070, 56 N.Y.S.3d 174 ; 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 ; Waterview Towers, Inc. v. 2610 Cropsey Dev. Corp., 181 A.D.3d 754, 755, 122 N.Y.S.3d 92 ).

In order to establish a claim to property by adverse possession, the claimant must prove that possession of the property was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period (see Waterview Towers, Inc. v. 2610 Cropsey Dev. Corp., 181 A.D.3d at 755–756, 122 N.Y.S.3d 92 ; Estate of Clanton v. City of New York, 153 A.D.3d 787, 789, 60 N.Y.S.3d 362 ). Additionally, under the relevant provision of RPAPL 522 that was in effect at the time of the events during which the defendants allege the disputed property was adversely possessed, the defendants were required to prove that the disputed property was either usually cultivated or improved or protected by a substantial inclosure (see Estate of Becker v. Murtagh, 19 N.Y.3d 75,...