Turner v. Baisley

• Decision Date: 25 October 1993
• Citation: 197 A.D.2d 681,602 N.Y.S.2d 907
• Parties: Carl G. TURNER, et al., Appellants, v. Donald BAISLEY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 907

602 N.Y.S.2d 907

197 A.D.2d 681

Carl G. TURNER, et al., Appellants, v.Donald BAISLEY, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 25, 1993.

Thomas A. O'Keefe, Peekskill, for appellants.

William J. Florence, Jr., Peekskill, for respondents.

Before THOMPSON, J.P., and LAWRENCE, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to RPAPL article 15, inter alia, for a determination of the plaintiffs' claim to certain real property by adverse possession, the plaintiffs appeal from an order of the Supreme Court, Westchester County(Nastasi, J.), entered June 26, 1991, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, Levenia Turner is the sister of the defendant, Donald Baisley.The plaintiffs and the defendants own parcels of land contiguous to one another, which were acquired from the parents of Levenia and Donald.A triangular parcel, of which the defendants are the record owner, is contiguous to the easterly side of the plaintiffs' land.For a number of years, the plaintiffs have been using the triangular parcel as part of their front lawn.They have planted trees and other flora on this parcel and have erected at least one fence at some point.The plaintiffs now seek title to this triangular parcel by reason of adverse possession.

In order to establish a claim of ownership by adverse possession, the party asserting such claim must prove that their possession is hostile and under claim of right, actual, open and notorious, exclusive, and continuous for the statutory period (see, Belotti v. Bickhardt, 228 N.Y. 296, 302, 127 N.E. 239).Here, the plaintiffs have failed to allege, except in a conclusory fashion, that the use of the parcel was hostile.While it is true that the element of "hostile use" under a claim of right may be presumed if the other elements have been proven (see, City of Tonawanda v. Ellicott Creek Homeowners Assn., 86 A.D.2d 118, 121, 449 N.Y.S.2d 116), "where it is shown that the user and the landowner are related by blood * * * the proponent is not accorded the benefit of the presumption", and the onus remains on the proponent to come forward with evidence of hostile use sufficient to raise a triable issue of fact (Wechsler v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 856, 860, 597 N.Y.S.2d 507;cf., Hassinger v. Kline, 91 A.D.2d 988, 989, 457...