Zeltser v. Sacerdote
| Decision Date | 24 June 2008 |
| Docket Number | 2007-04868. |
| Citation | 52 A.D.3d 824,2008 NY Slip Op 05925,860 N.Y.S.2d 624 |
| Parties | ZELIG ZELTSER et al., Respondents, v. ALAN SACERDOTE et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the judgment is affirmed, with costs.
The plaintiffs and the defendants own adjoining residential properties. When the plaintiffs purchased their property in 1987 an existing fence, which was covered in rose bushes and vines, ran parallel with their property line from the street to a garage situated in the rear of their property, for a distance of approximately 100 feet. A small strip of dirt, approximately one foot wide (hereinafter the disputed property), was sandwiched between this fence and the plaintiffs' driveway. At trial, the plaintiffs testified that they believed that the disputed property, which was on their side of the fence, was their property. In furtherance of this belief, the plaintiffs planted trees in the soil of the disputed property, trimmed the bushes and vines on the fence, and installed a row of bricks as an edging. In 1991 or 1992 they installed a fence that enclosed the front portion of the disputed property, making it inaccessible from the street. Additionally, they laid asphalt on the disputed property between their garage and the defendants' garage, both of which were situated in the back portion of the respective properties.
Notwithstanding the plaintiffs' testimony, title to the disputed property was actually held by the defendants; however, the defendants never provided the plaintiffs with any information in this regard. After conducting a property survey in 2003 the defendants removed the fence and the trees. The plaintiffs commenced this action to quiet title to the disputed property, based on their claim of adverse possession.
Pursuant to RPAPL 522, a party claiming title by adverse possession, not based upon a written instrument, must show that the parcel was either "usually cultivated or improved" or "protected by a substantial inclosure" (Seisser v Eglin, 7 AD3d 505, 506 [2004] [citations omitted]). "In addition, the party must satisfy the...
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