ADVERSE POSSESSION OR NEIGHBORLY ACCOMMODATION

CJA REALTY HOLDINGS, LP v. 14 PHILA ST. LLC, 2022 NY Slip Op 4208 - NY: Appellate Div., 3rd Dept. 2022:

"...An easement created by grant may be extinguished by adverse possession if the party seeking to extinguish the easement established, by clear and convincing evidence, that its use of the easement was hostile and under a claim of right, open and notorious, actual, exclusive and continuous for a period of 10 years (see Spiegel v Ferraro, 73 NY2d 622, 625 [1989]; EPG Assoc., LP v Cascadilla Sch., 194 AD3d 1158, 1163 [2021], lv dismissed 37 NY3d 1103 [2021]). A presumption that the use was hostile generally arises once all other elements of the adverse possession claim are established, thereby shifting the burden to the opposing party to demonstrate that the use was permissive (see Estate of Becker v Murtagh, 19 NY3d 75, 81-82 [2012]; Bekkering v Christiana, 180 AD3d 1276, 1279 [2020]). "However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise" (Schwengber v Hultenius, 160 AD3d 1083, 1084 [2018] [internal quotation marks and citations omitted]; accord Bekkering v Christiana, 180 AD3d at 1279-1280).

.....defendants' own submissions raise a question of fact as to whether use of the easement for enclosed outdoor seating and dining was permissive and under a claim of right (see Bekkering v Christiana, 180 AD3d at 1280-1281). Accordingly, Supreme Court properly denied defendants' motion for summary judgment (see id.; Kheel v Molinari, 165 AD3d 1576, 1578 [2018], lv denied 32 NY3d 1194 [2019]).

Turning to plaintiff's cross motion, relying on different proof than defendants, plaintiff has attempted to demonstrate that defendants' possession and use of the disputed portion of the easement was permissive, rather than hostile. However, plaintiff's submissions do not establish its entitlement to summary judgment as a matter of law, as a question of fact remains...."

ADVERSE POSSESSION AND A MOTION TO DISMISS

Halo v Schmidt, 2021 NY Slip Op 06609, Decided on November 24, 2021, Appellate Division, Second Department:

"The plaintiff and the defendant own adjacent parcels of real property in New City. In 2018, the plaintiff allegedly learned that his driveway encroached on the defendant's property and commenced the instant action, inter alia, in effect, for a judgment declaring that he owns the contested portion of the driveway by adverse possession. The defendant moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint. By order entered May 24, 2019, the Supreme Court, inter alia, denied that branch of the defendant's motion. The defendant appeals.

"The sole consideration in determining a pre-answer motion to dismiss a declaratory judgment action is 'whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'" (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 857, 858, quoting Minovici v Belkin BV, 109 AD3d 520, 524). Further, "where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" (Matter of Chet's Garage, Inc. v Village of Goshen, 161 AD3d 727, 731).

Here, the complaint alleged that the plaintiff's predecessor adversely possessed the subject property for more than 10 years prior to the commencement of this action, potentially implicating both the prior and current versions of RPAPL 522(1) (see Houdeck Real Estate Co., LLC v Bayport Postal Realty, LLC, 180 AD3d 761, 762; Hodges v Beattie, 68 AD3d 1597, 1598-1599). Accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87), even under the current version of the RPAPL, we cannot say as a matter of law that the plaintiff does not have a cause of action for adverse possession (see Maya's Black Cr., LLC v Angelo Balbo Realty Corp., 82 AD3d 1175, 1177). The evidentiary materials submitted by the defendant in support of his motion do not, as a matter of [*2]law, resolve the parties' factual disputes such that it can be said that the allegations in the complaint as to the cause of action for adverse possession are not facts at all (see Mazzei v Metropolitan Transp. Auth., 164 AD3d 1227, 1228)."

WHO CAN SELL THIS HOUSE: A TALE OF ADVERSE POSSESSION

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.

Having determined that Ann has acquired title by adverse possession, it is not necessary to determine whether Robert acquired title by adverse possession and whether petitioner had satisfied the good faith basis requirement in the 2008 amendment of RPAPL §501. In the amendment, the legislature defines “under claim of right” as a “reasonable basis for the belief that the property belongs to the adverse possessor.” The change to RPAPL §501 does not apply retroactively. Thus, the amendment is not applicable to Ann’s possession where the alleged adverse possessor’s property right vested prior to the amendment (see Hogan v. Kelly, 86 AD3d 590)."

ADVERSE POSSESSION IN NEW YORK

1982 E. 12th ST. HOLDING LLC v. LATI, 2020 NY Slip Op 33849 - NY: Supreme Court, Kings Co.  November 17, 2020:

".....

Article 5 of the RPAPL, as amended in 2008, is applicable to all claims filed on or after July 7, 2008 (L 2008, ch 269, § 9). Under the current law, an "adverse possessor" is defined as a person who "occupies real property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause of action for ejectment" (RPAPL 501[1]). The adverse possessor acquires title to the occupied real property upon the expiration of the 10-year statutory period (see CPLR 212[a]) where the use "has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual" (RPAPL 501[2]). With respect to an adverse possession claim not founded upon a written instrument or judgment, land "is deemed to have been possessed and occupied" only "[w]here there have been acts sufficiently open to put a reasonably diligent owner on notice," or "[w]here it has been protected by a substantial enclosure" (RPAPL 522).

RPAPL 543 provides, however, that "the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls," as well as "the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse." (See Hartman v Goldman, 84 AD3d 734, 735-736 [2d Dept 2011]). Thus, under the new statute, RPAPL 543, plaintiff's complaint does not state a cause of action. Specifically, this is because "plantings of foliage and shrubbery, and landscaping and lawn maintenance are de minimis and deemed permissive and non-adverse" (Bullock v Louis, ___ AD3d ___, 2020 NY Slip Op 06484 [2d Dept 2020]; Hartman v Goldman, 84 AD3d 734, 736 [2d Dept 2011]; see RPAPL 543).

In pre-amendment cases, the existence of the kinds of non-structural encroachments and maintenance listed in RPAPL 543 were able to be considered in determining whether the plaintiff had shown that he or she "usually cultivated, improved, or substantially enclosed the land, and the type of cultivation or improvement sufficient to satisfy the statute varied with the character, condition, location, and potential uses of the property" (id.; Asher v Borenstein, 76 AD3d 984, 986 [2d Dep 2010]).

....

Even under the "old law," adverse possession could not be obtained by planting grass and mowing it. Adding a bush or a young tree does not tip the balance in plaintiff's favor. Nor does running a hose and a few sprinkler heads. Keeping an unfenced strip of land on the border of plaintiff's property "in presentable condition" was found to be "inadequate to satisfy the requirement that the real property in dispute was usually cultivated or improved" (see Pritsiolas v Apple Bankcorp, Inc., 120 AD3d 647, 650 [2d Dept 2014]; see also Walsh v Ellis, 64 AD3d 702, 704, 883 NYS2d 563 [2009]; Giannone v Trotwood Corp., 266 AD2d 430, 431, 698 NYS2d 698 [1999]; Simpson v Chien Yuan Kao, 222 AD2d 666, 667, 636 NYS2d 70 [1995]; Yamin v Daly, 205 AD2d 870, 871, 613 NYS2d 300 [1994]). The same result obtains here.

Under the prior law, former RPAPL 522, "the party seeking title must demonstrate that he or she usually cultivated, improved, or substantially enclosed the land. Additionally, the party must demonstrate, by clear and convincing evidence, the five common-law elements of the claim. First, the possession must be hostile and under a claim of right, second, it must be actual, third, it must be open and notorious, fourth, it must be exclusive, and fifth, it must be continuous for the statutory period of 10 years" (Walsh v Ellis, 64 AD3d 702, 703 [2d Dept 2009]).

....

To be clear, under the prior law, when a party sought to obtain title by adverse possession on a claim not based upon a written instrument, he or she had to "produce evidence that the subject premises were either "usually cultivated or improved" or "protected by a substantial enclosure" ([old] RPAPL 522[1], [2]). That party also had to establish, by clear and convincing evidence, [not a preponderance of the evidence] the common-law requirements of hostile possession, under a claim of right, which was actual, open and notorious, and exclusive, and continuous for the statutory period" (see Giannone v Trotwood Corp., 266 AD2d 430, 431 [2d Dept 1999]).

...."

 

DEED FRAUD NOT SAVED BY ADVERSE POSSESSION CLAIM

A real case of family feud.

Matthews v. Matthews, NYLJ April 11, 2019 ,  Date filed: 2019-03-01, Court: Supreme Court, Kings, 

Judge: Justice Richard Velasquez, Case Number: 501041/2018:

This action concerns real property in Kings County located at 212 Weirfield Street, Brooklyn, NY 11221 (herein after “premises”). The plaintiff in this action has made a claim of deed fraud against the defendant. The defendant is plaintiff’s aunt and the plaintiff’s deceased fathers’ sister. The following facts are undisputed and have previously been admitted by the defendant in a separate action for foreclosure brought against the defendant.

It is undisputed that the property in question was purchased by the defendant’s father in 1963. In 1967, the plaintiff’s father died intestate, and the property passed to the plaintiff’s mother by operation of law as his only living intestate distributees were his wife and his only daughter the plaintiff herein. In 1975, plaintiff’s mother died, and plaintiff was her sole heir. Therefore, the property then passed to the plaintiff by operation of law. In 1992, defendant admits she executed and recorded a false and fraudulent deed as sole heir to herself individually. Defendant was not an heir at law. Plaintiff is the only heir at law. Defendant at the same time mortgaged said property and within one year went into foreclosure. The defendant, by her own admission, in the previous foreclosure action in 2008, admitted she did not own the property, and that she could not legally convey an interest in the property, said foreclosure action was thereafter dismissed. Specifically, the foreclosure court issued a decision holding that the defendant did not and could not convey a valid security interest in the property. This action follows.

It is alleged that the plaintiff became aware of the issues with the defendant claiming she owned the property when she obtained an attorney in connection with her parents’ estate and went to defendant and demanded keys to the premises in 2012.

ARGUMENTS

Plaintiff, BETTY MATTHEWS, now moves for a preliminary injunction enjoining the defendant, her agents and servants, and all persons acting on her behalf, pursuant to CPLR 6301 from transferring, selling, conveying, leasing renting, alienating or encumbering real property located at 212 Weirfield Street, Brooklyn, New York 1122; Block 3404 Lot 23 contending said property is rightfully her property. Plaintiff also contends defendant cannot claim adverse possession.

Defendant contends she has acquired title to the property by adverse possession and the plaintiff is barred from bring this action against her as the six (6) year statute of limitations has expired.

ANALYSIS

This Court has jurisdiction in this matter to grant a Preliminary Injunction and enjoining and restraining the defendant from transferring, selling, conveying, leasing, renting, alienating, or encumbering the real property at 212 Weirfield Street pursuant to N.Y. C.P.L.R. §6301, as the plaintiff, BETTY MATTHEWS, will suffer irreparable harm should the defendant attempt to sell, rent or encumber said property.

The present case is similar to that of, the Cruz case, wherein; “The owner of the subject premises died intestate, was survived by six adult children who then became co-owners of the premises. Milton Brown, one of the surviving children, executed a deed conveying the entire premises to himself as sole heir, obtained a loan secured by a mortgage on the premises from the defendant Long Beach Mortgage Company (hereinafter Long Beach), and subsequently died.” In the Cruz case, the court found “A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid (see Crispino v. Greenpoint Mtge. Corp., 304 AD2d 608, 608-609 [2003]; Yin Wu v. Wu, 288 AD2d 104, 105 [2001]; Rosen v. Rosen, 243 AD2d 618, 619 [1997]; Filowick v. Long, 201 AD2d 893 [1994]). In the Cruz case the Appellate division found; “the Supreme Court correctly cancelled the deed and mortgage which were obtained under false pretenses” (see Crispino v. Greenpoint Mtge. Corp., 304 AD2d 608, 608-609 [2003]); quoting Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 (2007).

It is well settled that a forged deed is a nullity. “Forged conveyances are void ab initio and do not transfer title”, Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 (2007). “A forged deed is a void deed and transfers no interest”, quoting Faison v. Lewis, 25 N.Y.3d 220, 230, 32 N.E.3d 400 (2015). Therefore, in the present case it is clear and undisputed, and in fact, admitted that the deed in the present case is forged and therefore the deed is void abinitio.

Defendant contends that plaintiff’s claim is time-barred because forgery is a category of fraud, and, like any other claim based on fraud, an action challenging a forged deed is subject to the limitations period of CPLR 203. “A void deed is not subject to a statutory time bar.” Faison v. Lewis, 25 N.Y.3d 220, 230, 32 N.E.3d 400 (2015). Therefore, defendants Statute of Limitations argument is unavailing.

Next, we turn to defendants’ motion pursuant to 1) CPLR 3211(a)(1), (7), and (8)1; or (2) Alternatively, treating this motion as one for summary judgment in favor of defendants. Pursuant to CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v. Purdy, 29 NY2d 157, 324 NYS2d 47, 272 NE2d 550). Nevertheless, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true (Gawrych v. Astoria Fed. Sav. & Loan, 148 AD3d 681, 684, 48 NYS3d 450, 455 (App Div 2d Dept, 2017). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v. Sterling Doubleday Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65).

In the present case, defendant, fails to offer any documentary proof in admissible form to support any allegation disproving the complaint. Moreover, defendant fails to establish what the documentary evidence is and how it proves allegations in the complaint false. Therefore, the branch of defendant’s motion to dismiss that is upon documentary evidence is hereby denied.

Pursuant to CPLR 3211 (a) (7). “The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail (Gawrych v. Astoria Fed. Sav. & Loan, 148 AD3d 681, 684, 48 NYS3d 450, 455 (App Div, 2d Dept. 2017), quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Further, “we accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Matter of Palmore v. Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1073 [App Div, 2d Dept. 2016]); (Morone v. Morone, 50 NY2d 481, 484, 429 NYS2d 592, 413 NE2d 1154; Rovello v. Orofino Realty Co., 40 NY2d 633, 634, 389 NYS2d 314, 357 NE2d 970). Pursuant to CPLR §3211, the pleading is to be afforded a liberal construction (see, CPLR §3026). “In assessing a motion under CPLR §3211 (a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” (Rovello v. Orofino Realty Co., 40 NY2d at 635, 389 NYS2d 314, 357 NE2d 970) and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 372 NE2d 17; Rovello v. Orofino Realty Co., 40 NY2d at 636, 389 NYS.2d 314, 357 NE2d 970). Further, “the court may consider any factual submissions made in opposition to a motion to dismiss a pleading in order to remedy pleading defects” (see Quinones v. Schaap, 91 AD3d 739, 740, 937 NYS2d 262; Daub v. Future Tech Enter., Inc., 65 AD3d at 1005, 885 NYS2d 115); Minovici v. Belkin BV, 109 AD3d 520, 521, 971 NYS2d 103, 106 (App Div 2d Dept. 2013). “[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion” (Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372, 751 NYS2d 401). “If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action” (see McGuire v. Sterling Doubleday Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims…plays no part in the determination of a pre-discovery 3211 [a] [7] motion to dismiss” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19).

In the present case, affording the complaint a liberal construction, accepting the facts as alleged therein as true, and granting plaintiff the benefit of every possible inference, it is the opinion of this Court that the complaint sufficiently states a cause of action for fraudulent deed (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 348, 27 NYS2d 231 at 38 (App Div, 2d Dept. 2006).

Now, turning to the defendant claim of adverse possession. Pursuant to CPLR 501 titled Adverse possession provides as follows; “(1) Adverse possessor. “A person or entity is an “adverse possessor” of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment.” (2) Acquisition of title. “An adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty-two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.” (3) Claim of Right. “A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means.” NY Real Prop Acts Law §501 (McKinney)

To establish a claim to land by adverse possession, the adverse claimant must establish that possession has been “adverse, under claim of right, open and notorious, continuous, exclusive, and actual” (RPAPL 501 [2]; see Koudellou v. Sakalis, 29 AD3d 640 [2006]; Congregation Yetev Lev D’Satmar v. 26 Adar N.B. Corp., 192 AD2d 501, 503 [1993]). “A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor” (RPAPL 501 [3]); quoting Calder v. 731 Bergan, LLC, 83 A.D.3d 758, 759, 920 N.Y.S.2d 413 (2011). In the present case, the defendant has failed to establish that she has a claim of right in the property. In fact, in the previous foreclosure action she admits that she has no claim of right. Therefore, defendant claim of adverse possession in the present case is unavailing.

Next the court will address the Notice of Pendency. Pursuant to CPLR 6501; “A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property. The pendency of such an action is constructive notice, from the time of filing of the notice only, to a purchaser from, or incumbrancer against, any defendant named in a notice of pendency indexed in a block index against a block in which property affected is situated or any defendant against whose name a notice of pendency is indexed. A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party”, see NY CPLR 6501 (McKinney). In the present case it is appropriate for the Notice of Pendency to remain in place. Therefore, the defendants request to cancel the Notice of Pendency is hereby denied.

Accordingly, plaintiff’s request for a preliminary injunction enjoining the defendant, her agents and servants, and all persons acting on her behalf, pursuant to CPLR 6301 from transferring, selling, conveying, leasing renting, alienating or encumbering real property located at 212 Weirfield Street, Brooklyn, New York 1122; Block 3404 Lot 23, is hereby granted for the reasons stated above. Defendants request (1) CPLR 3211(a)(1), (7), and (8) are hereby denied, for the reasons stated above. Defendant’s request to dismiss pursuant to CPLR 203 based upon statute of Limitations is hereby denied for the reasons stated above. Defendant’s request to cancel the notice of pendency filed relating to this action and prohibiting plaintiff from filing any successive notices of pendency is hereby denied. Defendant’s request for a declaratory judgment declaring the property the sole ownership of defendant through adverse possession is hereby denied for the reasons stated above.

PRESCRIPTIVE EASEMENT

A “prescriptive easement” is a permanent legal right to use the real property belonging to another person, and is a form of “adverse possession.”

Bedik Corp. v. Herrick Rd. Holdings, NYLJ 1/16/19, Date filed: 2018-12-14 , Court: Supreme Court, Nassau, Judge: Justice Leonard Steinman, Case Number: 004517/2016:

"The concept of fair notice to a property owner of another’s adverse use underlies the requirement that an easement by prescription have determinate boundaries. To satisfy the open and notorious element of a prescriptive easement claim, a party’s use of another’s land should be substantial and reasonably definite. Restatement (Third) of Property (Servitudes) §2.17 comment h at 274 (2000). “Claims for rights of way must be based on uses that are substantially confined to a regular route.” Id. (emphasis added). Equity also dictates that the acquisition of a right to utilize another’s land be limited at least to the actual past use made of such land. There are few cases in New York discussing the scope of a prescriptive easement and none similar to the facts before the court. In Patel v. Garden Homes Management Corp., 156 A.D.3d 807 (2d Dept. 2017), the court held that the right acquired by prescription is commensurate with the right enjoyed by the party obtaining the easement and that the defendant could obtain a prescriptive easement only equal in area to that portion of the plaintiff’s property actually used. Id. at 809; see also Vitiello v. Merwin, 87 A.D.3d 632 (2d Dept. 2011); Thury v. Britannia Acquisition Corp., 19 A.D.3d 586 (2d Dept. 2005). But these cases do not squarely address the situation where the purpose of the claimed easement remains the same but there are slight deviations in the path used over the servient estate.

Cases from other jurisdictions have addressed this issue in cases remarkably similar to this one. In California, its Supreme Court held that slight deviations from an accustomed route will not defeat an easement. Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564 (1984). In Warsaw, the plaintiff and defendant owned adjoining commercial parcels purchased from the same owner. Trucks servicing the plaintiff’s commercial building used a portion of the defendant’s vacant lot to enter, turn, park and leave the area of plaintiff’s loading dock. The defendant then constructed a warehouse partially on the area of the vacant lot needed for plaintiff’s trucks to maneuver into its loading bays, and plaintiff sought injunctive relief. The trial court granted the injunction, finding that the truck drivers had followed a definite course and pattern, with slight deviation.

The Supreme Court affirmed the trial court’s ruling, notwithstanding that California law requires that the existence of a prescriptive easement be shown by a definite and certain line of travel. In affirming, the Supreme Court explained:

The evidence revealed that truck drivers who were making deliveries to or receiving goods from plaintiffs used the parcel to approach the building, swing around and back into plaintiffs’ loading dock. Since the drivers varied in their abilities, the space required to complete this manuever [sic] was variable. No two drivers followed precisely the same course, but all used the parcel for the same purpose—to turn their vehicles so they could enter plaintiffs’ loading docks. The Supreme Court therefore held that the inevitable differences in the paths utilized by the drivers did not defeat the prescriptive easement claim because a definite pattern was followed for a similar purpose.

In Community Feed Store, Inc. v. Northeastern Culvert Corporation, 151 Vt. 152 (1989), the Vermont Supreme Court came to a similar conclusion when faced with nearly identical facts. In that action, the plaintiff sought a prescriptive easement over vacant land of its neighbor used by its customers and supplier delivery trucks for turning and backing into its mill’s loading docks. The trial court denied plaintiff’s claim for a prescriptive easement, in part because the plaintiff purportedly failed to prove what portion of the defendant’s land was used by the vehicles.

The Vermont Supreme Court reversed, finding that the extent of the use “must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period.” Id. at 158. The Supreme Court’s analysis persuasively demonstrated that its conclusion was consistent with similar cases from other jurisdictions and the Restatement of Property. See, e.g., O’Brien v. Hamilton, 15 Mass. App. Ct. 960 (1983)(extent of easement is measured by general pattern formed by the adverse use); Restatement of Property §477 (1944); see also Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 124 (2005)(use leading to prescriptive easement must define its bounds with reasonable certainty) and cases cited therein in fn. 23; Concerned Citizens of Brunswick County Taxpayers Ass’n. v. State ex rel. Rhodes, 329 N.C. 37 (1991)(use of roadway need not be confined to a definite and specific line of travel but rather there must be a “substantial identity” of traveled way claimed).

Irrespective of whether New York were to adopt the “pattern of use,” “substantial identity,” or “definite line of travel” test, Bedik has set forth sufficient evidence to establish its right to the claimed easement. It produced an eyewitness attesting to the consistent pattern of travel utilized by the delivery trucks with only slight deviations and evidence delineating this pattern was introduced.

For sure, Bedik does not help its cause by submitting diagrams with varying descriptions of its claimed easement. But the discrepancies—while significant to HRH because every foot of property burdened could affect its desire to proceed with submitted and approved development plans—are not substantial given the overall size of the vacant lot in question. Furthermore, some discrepancies were explained by Spinello as emanating from his inclusion in certain diagrams of additional space to provide a cushion for less-skilled drivers and for convenience. This court will not include such additional space as part of the prescriptive easement. While some variation of the trucks’ actual use of the vacant lot is explainable and acceptable, the touchstone remains that the easement is limited to actual use. Furthermore, given the varying paths used by the trucks, equity dictates in these circumstances that the right-of-way be limited to the area necessary for the purpose of the easement. See Ledlley v. D.J. & N.A. Management, Ltd., 228 A.D.2d 482 (2d Dept. 1996). Spinello testified that he observed trucks successfully accessing and leaving the loading bays utilizing the easement area reflected in Exhibit I. Trucks were also able to successfully navigate the area utilizing an eastern boundary of 78 feet as reflected in Exhibit D. These are the least intrusive uses of HRH’s land and, therefore, are the appropriate dimensions of the easement. Plaintiff is to submit a judgment on notice."

ADVERSE POSSESSION - TEN YEARS

168-170 Flushing Ave, LLC v February 22, LLC, 2018 NY Slip Op 06710, Decided on October 10, 2018, Appellate Division, Second Department:

"The plaintiff and the defendant Febrauary 22, LLC (hereinafter the defendant), own adjoining real property in Brooklyn. The plaintiff acquired its property, which had been developed as a gas station and automobile repair shop, in 2002. In 2013, shortly after acquiring its property, the defendant demanded that the plaintiff remove a portion of the automobile repair shop garage and driveway which encroached upon a triangular strip of the defendant's lot. Thereafter, the plaintiff commenced this action pursuant to RPAPL article 15 to be awarded title to the disputed strip as a result of adverse possession. Following discovery, the plaintiff moved for summary judgment. The Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment awarding it title as a result of the plaintiff's adverse possession to that portion of the disputed strip that is encroached by the automobile repair shop garage. The defendant appeals from that portion of the order.

In order to establish adverse possession, the plaintiff was required to demonstrate, by clear and convincing evidence, that its possession has "been adverse, under claim of right, open and notorious, continuous, exclusive and actual" for a period of 10 years (RPAPL 501[2]; see CPLR 212[a]; Reyes v Carroll, 137 AD3d 886, 888; Hartman v Goldman, 84 AD3d 734, 735). The plaintiff satisfied this burden with respect to that portion of the disputed strip that is encroached by the automobile repair shop garage, which is a substantial enclosure (see RPAPL 522[2]). The evidence submitted in support of the motion demonstrated that the garage had been erected prior to the plaintiff's acquiring title to the property, the automobile repair shop had been in continuous operation throughout the plaintiff's 10 years of ownership, and its use of the garage was exclusive (see e.g. Guardino v Colangelo, 262 AD2d 777, 778; Nazarian v Pascale, 225 AD2d 381, 383; [*2]Franzen v Cassarino, 159 AD2d 950, 951; Sinicropi v Town of Indian Lake, 148 AD2d 799, 800). In opposition, the defendant failed to raise a triable issue of fact (see Estate of Clanton v City of New York, 153 AD3d 787, 789)."