The following numbered papers read on these motions by plaintiffs to quiet title and enjoin defendants from: asserting right or title to a disputed piece of real property, and cross motion by defendants for a declaratory judgment granting them ownership of the disputed real property, PAPERS NUMBERED Order to Show Cause-Affidavits-Exhibits EF 5 – 22 Notice of Gross-Motion-Affidavit-Exhibits EF 24 – 33 Replying EF 35 – 52 Upon the foregoing cited papers, and after Microsoft Teams conference, it is ordered that plaintiffs’ motion to quiet title and enjoin defendants from asserting right or title to a disputed piece of real property, and cross motion by defendants for a declaratory judgment granting them ownership of the disputed real property, are consolidated for disposition, and are determined as follows: Plaintiffs and defendants are the owners of adjoining parcels of real property located at 69 and 65 Neptune Avenue, Woodmere, Nassau County, New York, respectively. Defendants purchased their property in November 1997 and plaintiffs purchased their property on March 21, 2018. In the rear of the northerly side of plaintiffs’ property and the southerly side of defendants’ property is a 24 foot by 3 foot piece of land whose ownership is disputed by the parties (Disputed Area). There is an existing fence (Existing Fence) that is 3 feet inside plaintiffs’ property line, and which runs along one side of the Disputed Area for approximately 24 feet, at which point that fence attaches to a gate that is at a 45 degree angle that then connects to the corner of the plaintiffs’ house with another section of fence. Plaintiffs sought to remove the Existing Fence, and put up a new fence on the boundary line between the parties’ properties. Defendants then asserted that the Existing Fence currently sits on the property line as they have acquired title to the Disputed Area by virtue of the doctrine of adverse possession. Plaintiffs then commenced the instant action to quiet title to the Disputed Area and defendants asserted a counterclaim for adverse possession. On September 27, 2020, the court granted plaintiffs’ application to the extent of temporarily restraining all parties from using or exerting control over the Disputed Area, Plaintiffs now seek an injunction: (1) enjoining defendants from asserting any right, interest, or title in the Disputed Area; (2) directing defendants to cease and desist from harassing plaintiffs and their family, invitees, agents and representatives; and from trespassing on plaintiffs’ property; (3) enjoining defendants or anyone acting on their behalf from interfering with plaintiffs’ use, occupancy and quiet enjoyment of their property; and (4) permitting plaintiffs to construct a new fence. Defendants cross-move for summary judgment and a declaratory judgment granting them ownership of the Disputed Area. In support of their motions, the parties submit, among other things, the affidavits of plaintiff Norman Strenger and defendants, photographs of the Disputed Area, and a copy of a survey of plaintiffs’ property dated November 21, 2017. Mr. Strenger states that plaintiffs have total access to the Disputed Area by means of the gate, and that they can also access it from the front of their property, which is not enclosed, and then walking along the side of their house. The gate in the Existing Fence opens to the north side of plaintiffs’ home, including the Disputed Area, and is used to access plaintiffs’ central air conditioning unit, the sprinkler valve control box, leaders to drain out the gutters and termite treatment traps (collectively “Equipment”). He alleges that the former owners of plaintiffs’ property placed the Equipment on the northerly side of the house in 1993. The Equipment is accessed periodically for maintenance and inspection. He avers that his landscapers also access the Disputed Area for maintenance. He identifies photographs of the Disputed Area taken on June 29, 2020 and July 14, 2020. The photographs from June 29, 2020 show the gate and the Disputed Area in an unimproved state. The July 14, 2020 photos show plaintiffs’ air conditioning unit and the presence of two rows of paver stones he alleges were only placed in the Disputed Area after the conflict between the parties escalated in July of 2020, Robin and Michael Gellman state that when they purchased their property in November of 1997, there was already a fence (Prior Fence) in the same location as the Existing Fence, that was 24 feet long, about four to five feet tall, and extended their property line by three feet over the property line of plaintiffs’ predecessor in interest. The previous owners of plaintiffs’ property replaced the Prior Fence with the Existing Fence more than 10 years prior to June of 2020. Upon purchasing their property, defendants erected a playhouse on the Disputed Area which remained there until June of 2014. Their children utilized the playhouse and the rest of the Disputed Area as a play area while they grew up, and never sought permission to use the Disputed Area. When their children grew up, they decided to use the Disputed Area as a vegetable garden from June 2014 through May 2019, after which they decided to build a bicycle shed. They started this project in June of 2019 by laying down several pavers in the Disputed Area to start to lay a foundation. Defendants allege that they have exclusively used the Disputed Area since November of 1997. Mr. Gellman further identifies a photo of the playhouse and the vegetable garden but does not state when either was taken. To establish a claim for adverse possession, a party must demonstrate: (1) hostile possession, (2) under a claim of right, (3) actual, open and notorious, exclusive and continuous for the statutory period of 10 years (see Kelly v. Bastianic, 93 AD3d 691 [2012]). Additionally, since title acquisition by adverse possession is not favored by law, these elements must be proven by clear and convincing evidence (see Estate of Becker v. Murtagh, 19 NY3d 75, 81 [2012]). If a party’s claim of adverse possession has ripened into title before the new version of the RPAPL took effect on July 7, 2008, the law applicable prior to that time shall apply (see Hogan v. Kelly, 86 AD3d 590, 592 [2011]; Franz v. Olin, 73 AD3d 44 [2010]). Here, since title allegedly vested in the defendants by adverse possession in 2007, the law in effect prior to the amendments is applicable. Pursuant to RPAPL 522, where as here, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was either “usually cultivated or improved” or “protected by a substantial enclosure” (RPAPL 522; see also Megalli v. Yeager, 167 AD3d 860, 861 [2018]). The improvement or cultivation necessary to give the record owner notice of an adverse claim varies based upon the nature and situation of the property and its uses, and must consist of acts usually performed on similar lands by their owners (see Robinson v. Robinson, 34 AD3d 975, 976 [2006]). Here, the parties’ submissions in support of their respective motions are insufficient to eliminate all triable issues of fact as to whether defendants obtained title to the Disputed Area by adverse possession (see 5262 Kings Highway, LLC v. Nadia Dev., LLC, 121 AD3d 748, 749 [2014]). Plaintiffs’ main argument is that defendants cannot establish the exclusivity element for an adverse possession claim as the Disputed Area is not completely enclosed, and the Equipment is located on the northerly side of plaintiffs’ property. However, based upon the photographs and the survey plaintiffs submit, it is evident that as one exits plaintiffs’ property through the gate, the Disputed Area is on the left hand side, and the Equipment is located on the right hand side. Thus, the Equipment is not located on the Disputed Area and any maintenance of the Equipment would not require one to set foot on the Disputed Area. Moreover, even if, as plaintiffs contend, plaintiffs or their predecessors in interest intermittently came onto the Disputed Area, the exclusivity element is not defeated by occasional forays onto the property by the true owner where the party claiming title by adverse possession has alone cared for or improved the disputed property as if it were his or her own (see Bergmann v. Spallane, 129 AD3d 1193, 1196 [2015]; Beddoe v. Avery, 145 AD2d 818, 819 [1988]). Thus, plaintiffs have failed to establish their entitlement to the relief sought. Similarly, defendants failed to demonstrate as a matter of law, that they have acquired title to the Disputed Area. Defendants offer no evidence in support of their adverse possession claim aside from their own testimony and photographs of the playhouse and vegetable garden that are undated, which is insufficient to meet their prima facie burden (see Robbins v. Schiff, 106 AD3d 1215, 1217 [2013]). Although defendants allege that the playhouse was in the Disputed Area from November 1997 until 2014, in reply, plaintiffs submit two Google Earth images of Defendants’ property taken from a street view, dated September 2012 and January 2013. Neither image shows the presence of the playhouse, raising doubts as to the dates the playhouse was actually located on the Disputed Area. Even if the single photograph of the playhouse and the vegetable garden did establish their presence in the Disputed Area during the time period in question, the area acquired by adverse possession is limited to the area actually occupied and possessed, and neither the playhouse nor the garden are alleged to take up the entire Disputed Area (see Robbins v. Schiff, 106 AD3d 1215, 1216 [2013]). Defendants attempt to bolster their claims in reply by submitting supplemental affidavits, where they claim to have continuously maintained the Disputed Area, and the affidavits of their son, Nicholas Gellman, and of Anthony Chacon and Emanuel Cohen, childhood friends of Nicholas Gellman, who attest to the location of the playhouse and the utilization and maintenance of the Disputed Area. However, a party cannot meet its summary judgment burden by submitting evidence for the first time in reply, and generally such evidence will be disregarded by the court (see Nationstar Mortg., LLC v. Tamargo, 177 AD3d 750, 753 [2019]). Accordingly, the motion and cross motion are denied. Any request for relief not expressly granted herein is denied. This constitutes the decision and order of the Court. Dated: January 12, 2021
