Estate of Pagliaro, NYLJ April 16, 2021, Date filed: 2021-03-18, Court: Surrogate's Court, Suffolk, Judge: Surrogate Theresa Whelan, Case Number: 2019-4706/A:
"Background
The following facts are not materially in dispute. The
petitioner, Thomas Wyly, is the administrator of the Estate of Ann F. Wyly, his
mother. The decedent in the above captioned matter was Ann’s aunt. The decedent
immigrated to the United States from Poland in the early 1900′s. The decedent
married Thomas Pagliaro and purchased two adjacent lots located at 303 Linton
Avenue and 311 Linton Avenue, Lindenhurst, New York (Lindenhurst property). She
lived with her husband at the Lindenhurst property until her husband’s death in
1959. The decedent continued to live at the property until she died on December
11, 1978. The decedent died intestate with no children. The title of the
Lindenhurst property remains in the name of the decedent.
After decedent’s husband died, Ann visited decedent more
frequently to take her shopping, to medical appointments, and helped her with
personal care and in maintaining the Lindenhurst property. Petitioner and his
brothers also visited the decedent as children and teenagers and never saw or
heard of any other relatives visiting her except their maternal grandmother,
Katarzyna Lezanski (Ann’s mother). As such, petitioner believed that the
members of his family were decedent’s only surviving relatives.
After decedent died in 1978, for approximately 26 years,
petitioner’s parents, Ann and Theodore, paid all the expenses and maintenance
costs relating to the Lindenhurst property until Ann passed away on October 6,
2004. Petitioner’s brother, Robert, then assumed payment of the expenses and
maintenance of the Lindenhurst property, including, but not limited to, paying
property taxes, and hiring landscapers. After Robert was seriously injured in a
car accident he moved into petitioner’s home in Massachusetts. Consequently, he
was unable to visit the Lindenhurst property as often as he did when he was
living in New York. However, Robert continued to pay the expenses of the
Lindenhurst property until his death on March 1, 2015, which was shortly after
moving to Massachusetts. Neither Ann nor Robert had a will.
Petitioner and his brother, James, then decided to sell the
Lindenhurst property. It was at that time, petitioner discovered that the
property was still titled in the name of decedent. As a result, petitioner filed
a petition for letters of administration for Frances Pagliaro’s estate. In
connection with his petition, Thomas hired a genealogist to prepare the
decedent’s family tree. The genealogical report took approximately three years
to complete as it involved extensive research for descendants both in the
United States and Poland. The report revealed that the decedent had five other
siblings in Poland when she immigrated to the United States. The report also
revealed that decedent was survived by nephews, nieces, grandnieces,
grandnephews, a great-grandniece and a great-grandnephew. Respondent,
decedent’s great-grandnephew, was the only person who appeared in the
administration proceeding and expressed a willingness to serve as the
fiduciary. As a result, the court issued letters of administration to
respondent on January 9, 2020. While the report was pending, petitioner paid
the expenses and costs of maintaining the Lindenhurst property. In addition, he
hired an attorney to remove squatters who destroyed the property during
Robert’s stay in Massachusetts, even though the question of the property’s
ownership had not been resolved.
Arguments
Petitioner moves for summary judgment pursuant to CPLR 3212
to quiet title to the Lindenhurst property by adverse possession. The
petitioner has submitted affidavits in support of his motion stating that his
family, beginning with his parents, had maintained and possessed the
Lindenhurst property for more than 40 years and that the possession was
continuous, exclusive, open, notorious, hostile and under a claim of right.
In support of his application, the petitioner asserts that
his family had always believed that the decedent had given the Lindenhurst
property to Ann and they had treated it as their own. In his affidavit, the petitioner
states that he had heard decedent stating that it was her wish that Ann gets
the Lindenhurst property after decedent died. After the death of decedent, Ann
undertook numerous acts that were consistent with that of a property owner,
including paying the taxes and expenses of the property and arranging for
landscaping services and snow removal from 1978 until her death in 2004, a
total of 26 years. Petitioner asserts that the tax records from the Suffolk
County Comptroller support his claim that Ann had been paying the property
taxes from 1985 through 2004. Further, after Ann’s death, Robert assumed
payment of the expenses and taxes related to the Lindenhurst property for the
next 11 years. Additionally, petitioner hired an attorney after receiving complaints
from the town about the deteriorating conditions of the Lindenhurst property
and successfully removed squatters that occupied the property after Robert
moved to Massachusetts.
In opposing the motion, respondent argues that given the
familiar relationship between decedent and petitioner’s family, as well as the
support the Wyle family provided to the decedent, the possession was not
hostile.
Respondent further asserts that the 20 year statutory period
for a co-tenancy by adverse possession is applicable to this case, not the 10
year statute of limitation as petitioner contends. Respondent argues that since
decedent died without a will, the Lindenhurst property passed to decedent’s
sister Katarzyna and their other five siblings as tenants in common under the
laws of intestacy. After the passing of Katarzyna, her share of the property
vested in Ann who then became a tenant in common with the other heirs of
decedent. Respondent further argues that the 20 year statutory period of
continuous occupancy by Ann and her family restarts with the passing of each of
the decedent’s heirs. Essentially, he argues that Ann was a tenant in common
with various heirs of decedent at different times as the interests of the
property passed to the heirs of each successive co-tenant who passed away. As
such, petitioner has not met his burden of continuous possession for the
statutory period.
Discussion
The party moving for summary judgment must make a prima
facie showing of entitlement to judgment as a matter of law, tendering sufficient
evidence to demonstrate the absence of any material issues of fact (Alvarez v.
Prospect Hospital, 68 NY2d 320; see also Matter of Pollock, 64 NY2d 1156).
Failure to make out a prima facie case requires a denial of the motion
regardless of the sufficiency of opposing papers (Winegarad v. NYU Medical
Center, 64 NY2d 851). Once the movant meets his burden, the burden of going
forward shifts to the opposing party to produce evidentiary proof in admissible
form to establish the existence of material issues of fact requiring a trial
(see Romano v. St. Vincent’s Medical Center, 178 AD2d 467, see also Friends of
Animals, Inc., v. Associated Fur Manufactures Inc., 46 NY2d 1065).
Petitioner seeking to obtain title by adverse possession
pursuant to Real Property Actions and Proceedings Law (RPAPL) §501 must
establish by clear and convincing evidence that his possession was (1) actual,
(2) open and notorious, (3) exclusive, (4) continuous for the statutory period
of 10 years and (5) hostile and under claim of right (Speziale v. Grabeklis,
303 AD2d 746). Permissive use negates the element of hostility required for
adverse possession (see Air Stream Corp., supra). Possession is hostile when it
constitutes “an actual invasion of or infringement upon the owner’s rights”
(Sinicropi v. Town of Indian Lake, 148 AD2d 799). However, hostile possession
“does not require a showing of enmity or specific acts of hostility” (Katona v.
Low, 226 AD2d 433, 434). “Hostility can be inferred simply from the existence
of the remaining four elements,” open, notorious, exclusive and continuous for
the full 10 year statutory period (Matter of Clanton, 153 AD3d 787). All that
is required is a showing that the petitioner’s possession and the use of the
property was under a claim of right (see Estate of Becker v. Murtagh, 19 NY3d
75). “By definition, a claim of right is adverse to the title owner and also in
opposition to the rights of the true owner” (Walling v. Przybylo, 7 NY3d 228,
232).
Ann’s dominion and control over the property coupled with
her paying the taxes and expenses of the property constitute an actual invasion
or infringement of the rights of respondent and the absent heirs and thus,
hostile to their rights as owners (see Ziegler v. Serrano, 74 AD3d 1610). She,
and subsequently Robert, have continuously possessed the property and otherwise
used it as owners for over 40 years, unlike respondent and the other heirs who
have not paid or maintained the property. In fact, they did not make any claims
to, nor have they been involved with, the Lindenhurst property during the
entire period of time that petitioner and his family were in possession of the
property. Their involvement with the property only arose after underlying
administration proceeding was commenced.
With petitioner having made a prima facie showing that the
property was acquired by adverse possession, the burden shifts to respondent to
produce evidence rebutting the presumption of adversity (Air Stream Corp. v.
3300 Lawson Corp., 99 AD3d 822). Respondent has failed to come forward with
evidence in admissible form sufficient to rebut petitioner’s claim of adverse
possession. Respondent’s opposition consists only of conclusory statements that
the possession was not hostile. While permission to possess the property negates
an adverse possession claim, respondent has not presented competent evidence
that the absent heirs gave Ann and petitioner’s family permission to use the
property.
Further, respondent has not produced any evidence that he
had any involvement with the Lindenhurst property during those years that
petitioner and his family had maintained and paid the expenses of the property.
By claiming that petitioner and his family “assumed ownership” of the property
“in an illegal matter inconsistent with New York State Law,” respondent is
essentially acknowledging that petitioner and his family had occupied the
property exclusively and that their occupation was hostile to the interests of
the decedent’s absent heirs.
The court further finds respondent’s assertion that the co-tenancy
20 year statutory period that is applicable to Ann’s possession is without
merit. First, respondent has not established that Ann was a co-tenant with
decedent’s absent heirs. Second, even if the court were to apply the 20 year
statutory period, she had met this requirement as her possession of the
Lindenhurst property lasted for over 25 years, namely from 1978 to 2014.
Additionally, the court finds respondent’s contention that the statutory period
restarts with each passing heir is also without merit. The changing of the
ownership of the tenants in common does not negate the fact that Ann and
subsequently Robert had possessed the property and that their possession and
use of the property was exclusive, continuous and under a claim of right adverse
to the interests of the absent heirs.
With respondent having failed to raise a triable issue of
fact, petitioner is entitled to summary judgment to quiet title to the
Lindenhurst property by adverse possession.
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