Turner v. Baisley

Decision Date25 October 1993
Citation197 A.D.2d 681,602 N.Y.S.2d 907
PartiesCarl G. TURNER, et al., Appellants, v. Donald BAISLEY, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

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...

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13 cases
  • Talmage v. RONALD ALTMAN TRUST, CV 92-2029.
    • United States
    • U.S. District Court — Eastern District of New York
    • 30 Diciembre 1994
    ...record owner have a familial or close relationship, no presumption of hostility arises.8See, e.g., Turner v. Baisley, 197 A.D.2d 681, 602 N.Y.S.2d 907, 908-09 (2d Dep't 1993); cf. Wechsler v. New York State Dep't of Environmental Conservation, 193 A.D.2d 856, 597 N.Y.S.2d 507, 510 (3d Dep't......
  • In re Lee
    • United States
    • New York Supreme Court — Appellate Division
    • 20 Junio 2012
    ...related by blood to the decedent, the element of hostile possession under a claim of right may not be presumed ( see Turner v. Baisley, 197 A.D.2d 681, 682, 602 N.Y.S.2d 907;Wechsler v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 856, 860, 597 N.Y.S.2d 507). However, the amended......
  • Klumpp v. Freund
    • United States
    • New York Supreme Court — Appellate Division
    • 12 Abril 2011
    ...affords the Estate access to the public road. Accordingly, an easement over Parcel A is not absolutely necessary ( see Turner v. Baisley, 197 A.D.2d 681, 602 N.Y.S.2d 907; Van Schaack v. Torsoe, 161 A.D.2d 701, 555 N.Y.S.2d 836; see generally Michalski v. Decker, 16 A.D.3d 469, 792 N.Y.S.2d......
  • Simon v. Wells, 2007 NY Slip Op 34165(U) (N.Y. Sup. Ct. 12/12/2007)
    • United States
    • New York Supreme Court
    • 12 Diciembre 2007
    ...to establish the strict necessity of using the dirt driveway for ingress and egress to their property. See, Turner v. Baisley, 197 A.D.2d 684 602 N.Y.S.2d 907 (2d Dept. 1993). For the reasons set forth herein above, plaintiffs motion for a preliminary injunction is denied in its entirety. T......
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