DECISION AND ORDER In this action to, inter alia, quiet title, plaintiff moves seeking an order pursuant to CPLR §3212, granting her partial summary judgment1. Saliently, plaintiff avers that because, inter alia, she acquired title to a portion of defendants’ property and a structure thereon by adverse possession, summary judgment declaring that she acquired title to the foregoing property and structure is warranted. Defendants oppose the instant motion averring, inter alia, that because possession of the foregoing structure was neither hostile nor exclusive, extant questions of fact on the issue of adverse possession preclude summary judgment. For the reasons that follow hereinafter, plaintiff’s motion is granted, in part. The instant action is to quiet title, for declaratory judgment, trespass, negligence, nuisance and conversion. The amended complaint alleges the following. Plaintiff owns the premises located at 6031 Huxley Avenue, Bronx, NY (6031) and the lot on which 6031 sits. Defendant MARIA P. SAUVAGE2 (MS) owns the premises located at 6030 Huxley Avenue, Bronx, NY (6030), which she acquired from her husband Paul Sauvage (PS) subsequent to his death. Plaintiff purchased 6031 on June 20, 1997, from Franz J. Monssen (FM) and his wife Linda Monssen (LM), who on April 6, 1979, purchased 6031 from Genevieve Lynch (Lynch). 6031 and 6030 are adjacent to each other. More specifically, the southern portion of 6031 abuts and is adjacent to the northen portion of 6030. The eastern portion of both properties are on and abut Huxley Avenue and the western portions of both properties are on and abut Spencer Avenue. In April 2015, MS wrongfully destroyed a portion of the Stone Garage when she and/or persons under her direction knocked down portions of the southern, eastern, and western walls of the Stone Garage and thereafter, erected a chain-link fence in the middle of the Stone Garage. Based on the foregoing, plaintiff interposes six causes of action with respect to the Stone Garage and four areas of 6030, over which either sat a portion of Stone Garage or to which the Stone Garage was adjacent. The first area is at the southeasterly corner of 6031, which sits over the property line between 6031 and 6030, over which sat a portion of the Stone Garage, and which runs 12 feet north from 6031 and towards 6031. The second area is behind the Stone Garage, which runs west to a paved asphalt driveway. The third area is a triangular area, which runs west, following the contours of a driveway and a retaining wall, which includes concrete stairs and a sidewalk, and leads to the front door of 6031. The last area is at the west end of 6031 and previously contained a walkway from Spencer Avenue. The first cause of action is to quiet title pursuant to Article 15 of the RPAPL. Specifically, plaintiff alleges that she has acquired titled over the portion of the Stone Garage and four other areas of 6030, over which either sat a portion of Stone Garage or to which the Stone Garage was adjacent under the doctrines of adverse possession and/or practical location. With respect to adverse possession, plaintiff alleges that the foregoing areas have been adversely possessed by plaintiff because for a period of at least 10 years, plaintiff has (1) usually cultivated, maintained, improved, and/or substantially enclosed the foregoing four areas; (2) openly, notoriously and hostilely used the four areas under a claim of right; (3) exclusively used the Stone Garage — which constitutes a substantial enclosure — for her own purposes, always maintaining the Stone Garage’s structural integrity and at times renting it to tenants; and (4) used the area behind the Stone Garage, the walkway at or near the concrete stairs, the concrete stairs, and the walkway on Spencer Avenue exclusively for her own purposes, cutting and watering the grass thereon, and removing debris therefrom. With respect to practical location, it is alleged that the Stone Garage’s walls and the overhang of its roof, the area behind the Stone Garage, the walkway and stairs, and the walkway on Spencer Avenue constitute a clear, natural, and practical demarcation of the property line between 6031 and 6030. The second cause of action is for declaratory judgment, wherein it is alleged that the doctrines of adverse possession and/or practical location, warrant declaration that plaintiff owns the foregoing areas and is entitled to an easement allowing it to use a portion of 6030, namely the asphalt driveway and concrete patio located thereat. The third cause of action is for trespass, wherein plaintiff seeks damages for the damage to the Stone Garage, which is alleged to be plaintiff’s property. The fourth cause of action is for negligence, wherein plaintiff seeks damages for the damage to the Stone Garage, which is alleged to be plaintiff’s property and caused by MS’ breach of the duty of care. The fifth cause of action is for private nuisance, wherein plaintiff seeks damages for the damage to the Stone Garage, which is alleged to be plaintiff’s property and caused by MS’ interference with plaintiff’s use and enjoyment of Stone Garage. The sixth cause of action is for conversion, wherein plaintiff seeks damages for the damage to the Stone Garage, which is alleged to be plaintiff’s property and caused by MS’ conversion of plaintiff’s property. Within their answer, defendants interpose 17 affirmative defenses, including that the instant action is barred by the statute of limitations and that plaintiff fails to join indispensable parties. Defendants also interpose a counterclaim seeking to recover compensatory damages totaling $5,500 and exemplary damages in excess of $500,000. Plaintiff’s motion seeking partial summary judgment is granted, in part. Significantly, plaintiff establishes that by virtue of adversely possessing the Stone Garage and the area of 6030 on which it sat, plaintiff has acquired title to both so as to warrant summary judgment on the first two causes of action to quite title and for declaratory judgment, respectively. With respect to the remaining causes of action, however, questions of fact with regard to whether MS believed that she owned the Stone Garage preclude summary judgment. Significantly, with respect to the remaining causes of action, liability for the damage to Stone Garage hinges on whether MS believed that she actually owned the same. To that end, plaintiff’s documentary evidence, demonstrating that the Stone Garage was on a portion of 6030′s property, precludes summary judgment. STANDARD OF REVIEW The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof (Mondello v. DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v. New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). There is no requirement that the proof be submitted by affidavit, but rather that all evidence proffered be in admissible form (Muniz v. Bacchus, 282 AD2d 387, 388 [1st Dept 2001], revd on other grounds Ortiz v. City of New York, 67 AD3d 21, 25 [1st Dept 2009]). Notably, the court can consider otherwise inadmissible evidence, when the opponent fails to object to its admissibility and instead relies on the same (Niagara Frontier Tr. Metro Sys. v. County of Erie, 212 AD2d 1027, 1028 [4th Dept 1995]), or when the opponent fails to object to the admission of such evidence (Bank of New York Mellon v. Gordon, 171 AD3d 197, 202 [2d Dept 2019] ["However, as a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion."]; see Greene v. Kevin D. Greene, LLC, 188 AD3d 1012, 1013 [2d Dept 2020]; Rosenblatt v. St. George Health and Racquetball Assoc., LLC, 119 AD3d 45, 55 [2d Dept 2014] ["Thus, the Supreme Court erred when it, sua sponte, determined that the plaintiff's deposition transcript was inadmissible because of the lack of a certification and, as a result, concluded that Eastern Athletic had failed to meet its prima facie burden."]). The latter is premised on the well settled principle that a court ought not raise arguments never raised by the parties themselves (Misicki v. Caradonna, 12 NY3d 511, 519 [2009] ["We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made."]). Once movant meets his initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562). It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. As noted by the Court of Appeals, [t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the cour t as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgme nt, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case (Friends of Animals v. Associated Fur Manufacturers, Inc. Inc., 46 NY2d 1065, 1067 1068 [1979] [internal citations omitted]). Accordingly, generally, if the opponent of a motion for summary judgment seeks to have the court consider inadmissible evidence, he must proffer an excuse for failing to submit evidence in admissible form (Johnson v. Phillips, 261 AD2d 269, 270 [1st Dept 1999]). When deciding a summary judgment motion, the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman (278 AD2d 811, 811 [4th Dept 2000]). [s]upreme Court erred in resolving issues of credibility in granting defendants’ motion for summary judgment dismissing the complaint. Any inconsistencies bet ween the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial (see also Yaziciyan v. Blancato, 267 AD2d 152, 152 [1st Dept 1999]; Perez v. Bronx Park Associates, 285 AD2d 402, 404 [1st Dept 2001]). Accordingly, the Court’s function when determining a motion for summary judgment is issue finding, not issue determination (Sillman v. Twentieth Century Fox Film Corp. Corp., 3 NY2d 395, 404 [1957]). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact (Rotuba Extruders v. Ceppos, 46 NY2d 223, 231 [1978]). When the existence of an issue of fact is even debatable, summary judgment should be denied (Stone v. Goodson, 8 NY2d 8, 12 [1960]). QUIETING TITLE BY ADVERSE POSSESSION RPAPL §1501(1) states that [w]here a person claims an estate or interest in real property; or where he claims such estate or interest as executor or administrator of a deceased person; or where a municipal corporation has purchased an estate or interest in real property at a sale conducted by it for unpaid taxes against the property and the time within which redemption from such sale may be made has expired and such municipal corporation claims it; such person or municipal corporation, as the case may be, may maintain an action against any other person, known or unknown, including one under disability as hereinafter specified, to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make; provided, however, that where the estate or interest claimed by the plaintiff is for a term of years, the action may not be maintained unless the balance remaining of such term of years is not less than five. Accordingly, the proponent of an action to quite title must establish “that it holds title [to the property in question], or that the nonmovant’s title claim is without merit” (X & Y Dev. Group, LLC v. Epic Tower, LLC, 196 AD3d 732 [2d Dept 2021], lv to appeal dismissed, 37 NY3d 1140 [2022]; 1259 Lincoln Place Corp. v. Bank of New York, 159 AD3d 1004, 1005 [2d Dept 2018]; White Sands Motel Holding Corp. v. Trustees of Freeholders and Commonalty of Town of E. Hampton, 142 AD3d 1073, 1074 [2d Dept 2016]; see generally 5000, Inc. v. Hudson One, Inc., 130 AD3d 676, 677 [2d Dept 2015]; Clochessy v. Gagnon, 58 AD3d 1008, 1009 [3d Dept 2009]). In an action to quiet title, a party who demonstrates that it acquired title to property by adverse possession establishes entitlement to summary judgment (Ray v. Beacon Hudson Mtn. Corp., 88 NY2d 154, 158 [1996] ["The Appellate Division reversed, and declared that plaintiffs have no right, title or interest in the disputed property. The Court noted that the element of continuous possession necessary to establish title by adverse possession could be satisfied by seasonal use of property, but concluded that plaintiffs' use for one month out of the four-month summer season was not sufficiently regular to give the owner notice of the adverse claim. We granted plaintiffs' motion for leave to appeal, and now reverse."]). Prior to 20083, former RPAPL §522, prescribed the essential elements of a claim for adverse possession, stating that in an action for adverse possession, not founded on a written instrument, the proponent of adverse possession had to establish that the property/land “has been usually cultivated or improved” (RPAPL former §522[1]) or that the property “has been protected by a substantial enclosure” (RPAPL former §522[2]). Accordingly, the proponent of an action seeking to obtain title to real property by way of adverse possession must demonstrate that the possession of the relevant property was “(1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years (Estate of Becker v. Murtagh, 19 NY3d 75, 81 [2012];, Ray at 159 [1996]; Children’s Magical Garden, Inc. v. Norfolk St. Dev., LLC, 164 AD3d 73, 80 [1st Dept 2018]; Pritsiolas v. Apple Bankcorp, Inc., 120 AD3d 647, 649 [2d Dept 2014]; Shilkoff v. Longhitano, 94 AD3d 974, 976 [2d Dept 2012]; Ram v. Dann, 84 AD3d 1204, 1205 [2d Dept 2011]; Corigliano v. Sunick, 56 AD3d 1121, 1121 [4th Dept 2008]; Joseph v. Whitcombe, 279 AD2d 122, 125 [1st Dept 2001]). In addition, in an action for adverse possession, not premised on a written instrument, former RPAPL §522 requires proof that the land in question was “usually cultivated or improved” or that the land “has been protected by a substantial enclosure” (RPAPL former §522[1] and [2]; Estate of Becker at 81; Ray at 160; Children’s Magical Garden, Inc. at 80; Pritsiolas at 649; Ram at 1205; Corigliano at 1121-1122). Essentially, as the court noted in Brand v. Prince (35 NY2d 634 [1974]), the possession must be “of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period” (id. at 636). Significantly, the proponent of adverse possession must prove all the requisite elements by clear and convincing evidence4 (Estate of Becker at 81; Ray at 159; Van Valkenburgh v. Lutz, 304 NY 95, 98 [1952]). Hostility, of course, does not require enmity or acts of actual hostility (Greenberg v. Sutter, 257 AD2d 646 [2d Dept 1999]; Katona v. Low, 226 AD2d 433, 434 [2d Dept 1996]; Kappes v. Ruscio, 170 AD2d 743, 744 [3d Dept 1991]), but merely means that the adverse possessor asserts a right to the property/land and uses it in a manner which is “adverse to the title owner and also in opposition to the rights of the true owner” (Estate of Becker at 81; Walling v. Przybylo, 7 NY3d 228, 232 [2006]; Monnot v. Murphy, 207 NY 240, 245 [1913]). In other words, the hallmark of hostile use is the acquiescence of [use by] the real owner in the exercise of an obvious adverse or hostile ownership [by another] through the statutory period. [Indeed,] [t]he object of the statute defining the acts essential to constitute an adverse possession is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be thereby called upon to assert his legal title (Monnot at 245). Stated differently, the crux of hostility is the use of another’s property despite knowledge that it does belong to the adverse possessor. However, it is important to note, that conscious knowledge of ownership is irrelevant since the test is whether there is actual occupation of the property/land, not whether the occupier knows that he has no right to occupy the property/land (Walling v. Przybylo, 7 NY3d 228, 232 [2006]; Children’s Magical Garden, Inc. at 84). Accordingly, hostility exists even if the adverse possessor occupies another’s property/land by mistake (Greenberg at 646-647; Katona v. Low, 226 AD2d 433, 434 [2d Dept 1996]; Bradt v. Giovannone, 35 AD2d 322, 325 [3d Dept 1970]). A rebuttable presumption, sufficient to satisfy the element of hostility arises by possession of the land/premises, accompanied by all the usual acts of ownership, and continues until the possession is shown to be subservient to the title owner of the land/property (Estate of Becker at 81-82; Children’s Magical Garden, Inc. at 84; Estate of Clanton v. City of New York, 153 AD3d 787, 789 [2d Dept 2017]). Hostility is also presumed when all the other elements required for adverse possession — actual use, which was open and notorious, exclusive, and continuous for the statutory period of 10 years are established (Estate of Clanton at 789; Bratone v. Conforti-Brown, 79 AD3d 955, 957 [2d Dept 2010]; United Pickle Products Corp. v. Prayer Temple Community Church, 43 AD3d 307, 309 [1st Dept 2007]). The foregoing presumption shifts the burden to the title owner to produce evidence rebutting the claim of adverse possession (Estate of Clanton at 789; Bratone at 957; United Pickle Products Corp. at 309). Notably, when the proponent of adverse possession seeks permission from the title owner of the property/land to use it, the rebuttable presumption is negated (Estate of Becker at 81; Children’s Magical Garden, Inc. at 84; City of Tonawanda v. Ellicott Cr. Homeowners Ass’n, Inc., 86 AD2d 118, 124 [4th Dept 1982]; Campano v. Scherer, 49 AD2d 642, 643 [3d Dept 1975]; Smith v. Folmsbee, 31 AD2d 584 [3d Dept 1968]). Moreover, because a close neighborly relationship between the parties gives rise to the implication that the use of property by the adverse possessor is permissive (Hassinger v. Kline, 91 AD2d 988, 989 [2d Dept 1983]), the foregoing rebuttable presumption may not apply where the parties have “a close and cooperative relationship” (Estate of Becker at 82). To establish hostility, the proponent of adverse possession must “come forward with affirmative facts to establish that the use of the property was under a claim of right and adverse to the interests of the true owners” (Estate of Becker at 82; Bratone v. Conforti-Brown, 150 AD3d 1068, 1071 [2d Dept 2017]; Albright v. Beesimer, 288 AD2d 577, 578 [3d Dept 2001]; McNeill v. Shutts, 258 AD2d 695, 696 [3d Dept 1999]). With respect to whether the proponent of adverse possession actually used the property/land in an open and notorious manner, regular cultivation, improvement and inclosure of another’s land sufficiently establishes the same (Ray at 160). What constitutes sufficient cultivation and improvement necessarily varies based on the property, its location and the uses to which it can be put (Ramapo Mfg. Co. v. Mapes, 216 NY 362, 373 [1915]; Van Valkenburgh v. Lutz, 304 NY 95, 104 [1952]; LS Mar., LLC v. ACME of Saranac, LLC, 174 AD3d 1104, 1106 [3d Dept 2019]; Wilcox v. McLean, 90 AD3d 1363, 1365 [3d Dept 2011]). However, at the very least, the activities should be those that comprise the “usual [and] ordinary cultivation and improvement of similar lands by thrifty owners” (Ramapo Mfg. Co. at 373;LS Mar., LLC at 1106; Wilcox at 1365). Notably, The removal of debris and the occasional raking and removal of trees has been found to constitute insufficient improvement and cultivation for purposes of adverse possession (Winchell v. Middleton, 226 AD2d 1009, 1010 [3d Dept 1996]). Similarly, the cultivation of only a portion of the land sought to be adversely possessed has been held to be insufficient cultivation for purposes of adverse possession (Van Valkenburgh at 98; Yamin v. Daly, 205 AD2d 870, 871 [3d Dept 1994]), as has the removal of snow and the filling of depressions on a driveway constituting only a portion of the property with gravel (Yamin at 871). By contrast, the consistent cultivation and improvement of the entire property sought to be adversely possessed by plowing snow and mowing the grass has found to constitute sufficient cultivation and improvement for purposes of adverse possession (Goss v. Trombly, 39 AD3d 1128, 1130 [3d Dept 2007] ["Plaintiffs or their predecessors regularly plowed the driveway and scraped ice from it in winter, mowed grass alongside it, trimmed overhanging trees and had truckloads of gravel hauled in twice to fill in ruts. These maintenance activities are similar to those conducted by most owners of driveways and are consistent with the nature of the use of this property as a driveway."]). With respect to possession sufficient to satisfy prevailing law, the same is established when the proponent of adverse possession “use[s] or [is] physical[ly] presen[t] on the property [since it] is the only means of giving notice to the record owner of a hostile claim” (Ray at 160). Moreover, since such possession must be continuous, the requirement of continuous possession is satisfied when the adverse claimant’s acts of possessing the property, including periods during which the claimant exercises dominion and control over the premises or is physically present on the land (Ray at 159). Indeed, the nature and character of the property will, of course, determine what degree of control is required for purposes of adverse possession since undeveloped land is not as readily susceptible to cultivation as residential property and therefore renders the usual hallmarks of ownership impossible or unreasonable (id. at 159). With respect to the element of exclusivity, it requires proof that the adverse possessor solely maintains the property/land as if it were his/her own” (Estate of Becker at 83; [2012]; Beddoe v. Avery, 145 AD2d 818, 819 [3d Dept 1988]; 1971]). To that end, provided that the adverse possessor uses land/property in ways that are separate and exclusive from the general use, exclusivity is not negated merely because others are permitted to also use the property/land (Estate of Becker at 83; Pirman v. Confer, 273 NY 357, 363 [1937]; Pro-Fac Co-op., Inc. v. Baltimore & O. R. Co., 36 AD2d 441, 444 [4th Dept 1971]). In Estate of Becker, even though plaintiff allowed others to use the dock which was the subject of adverse possession, the court nevertheless found that plaintiff had satisfied the element of exclusive use (id. at 83-84). Significantly, the court held that although plaintiff permitted “certain friends and neighbors access to the dock and boardwalk, he did not grant such access to the general public; and the use of the dock and boardwalk by plaintiff’s friends and neighbors — in the form of a right-of-way — was different in scope than his construction, maintenance and control of the boardwalk and dock” (id. at 83-84). With regard to the element of occupation, particularly when the claim for adverse possession is not based upon a written instrument, the occupation required means actual physical occupation, requiring demonstration that the land/property was usually cultivated or improved, or that the same has been protected by a substantial enclosure (City of Tonawanda v. Ellicott Cr. Homeowners Ass’n, Inc., 86 AD2d 118, 122 [4th Dept 1982]; Mohawk Paper Mills Inc. v. Colaruotolo, 256 AD2d 924, 926 [3d Dept 1998] Lewis v. Vil. of Lyons, 54 AD2d 488, 491 [4th Dept 1976]). With regard to substantial enclosure, the inquiry is whether the area in dispute is significantly enclosed by some physical structure (168-170 Flushing Ave, LLC v. February 22, LLC, 165 AD3d 742, 743 [2d Dept 2018] ["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."]; Warren v. Carreras, 133 AD3d 592, 594 [2d Dept 2015] ["They submitted evidence that the disputed property had been enclosed by [chicken wire and chain link] fencing since at least 1992, and that both the plaintiffs and their predecessor in interest cultivated and maintained the lawn on their side of the fence until 2010, while the property on the defendant’s side of the fence was wooded and remained uncultivated.”]; Bassett v. Nichols, 26 AD2d 569, 569 [2d Dept 1966] ["Since the stone retaining wall which enclosed the strip of land in dispute as part of the main property was sufficient to constitute an inclosure within the meaning of section 522 of the Real Property Actions and Proceedings Law" (internal quotation marks omitted).]), for which enclosure the proponent of adverse possession satisfies all the elements of adverse possession (168-170 Flushing Ave, LLC, at 743 ["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."]; Warren at 594 ["Here, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law declaring that they were the owners of the disputed property by adverse possession. They submitted evidence that the disputed property had been enclosed by fencing since at least 1992, and that both the plaintiffs and their predecessor in interest cultivated and maintained the lawn on their side of the fence until 2010, while the property on the defendant's side of the fence was wooded and remained uncultivated. The plaintiffs' possession of the property was not contested by the defendant until 2010. In opposition, the defendant failed to raise any triable issues of fact as to whether the plaintiffs' occupation of the property was under a claim of right, open and notorious, or continuous."]; Bassett at 569 ["In our opinion, the record amply supports the finding that defendant and her family occupied the strip of land in dispute openly and notoriously for the statutory period for the acquisition of title by adverse possession and that defendant's claim of title was founded upon a written instrument. Moreover, were we to find that her claim of title was not founded upon a written instrument, we would nonetheless affirm the judgment, since the stone retaining wall which enclosed the strip of land in dispute as part of the main property was sufficient to constitute an inclosure within the meaning of section 522 of the Real Property Actions and Proceedings Law (internal quotation marks omitted)."]). In support of the instant motion, plaintiff submits an affidavit, wherein she states, in relevant part, the following: On June 20, 1997, plaintiff purchased 6031 from FM and LM, who had previously acquired 6031 on April 6, 1979 from Lynch. When plaintiff purchased 6031, by virtue of a closing agreement, she was made aware that the Stone Garage in between 6030 and 6031 was partially sitting on 6030′s property and that despite the foregoing, FM and FS used, maintained and leased the garage to others, and kept any rents paid to them. Since 1993, MS owned 6030, which she acquired from her husband PS upon his death and which PS acquired from Lynch in 1973. 6030 and 6031 are adjacent to each other and run contagiously (share a common border) from east to west. Specifically, the southern portion of 6031 is adjacent and borders the northen portion of 6030. The eastern portions of both properties border Huxley Avenue and the western portions border Spencer Avenue. With respect to the Stone Garage, it is a garage made of stone and wood and is located on the eastern side of both 6030 and 6031 and borders Huxley Avenue. The Stone Garage is 25 feet wide and 25 feet long. There is a concrete driveway in front of the garage, which inclines down and towards Huxley Avenue. In 1997, the garage had doors, which were kept locked and the keys, were solely held by plaintiff, her husband, and the Fieldston Property Owners Association (FPOA), to whom plaintiff leased the garage. In recent years, the doors to the garage have been removed and the garage has been kept open. The Stone Garage sat within the property lines of record for both 6030 and 6031, essentially straddling the property line demarcating the boundaries to each property. Significantly, the greater portion of the Stone Garage, about 13 feet, sits on the property belonging to 6031, with the remaining 12 feet of the garage once sitting on the property belonging to 6030. With the exception of the period between March through November 1998, when plaintiff leased the Stone Garage to the FPOA so that it could park a truck therein and store maintenance equipment, since 1997, when plaintiff purchased 6031, she has had exclusive possession of the Stone Garage. Since 1998, when plaintiff ceased leasing the Stone Garage to the FPOA, plaintiff and her husband have had exclusive use the Stone Garage. Specifically, they have parked their cars therein, have had visitors also park therein, and plaintiff’s husband has stored work related materials therein. Neither MS nor the other defendants have ever used the Stone Garage for any purpose. Over the years plaintiff and her husband have maintained the Stone Garage by pouring a new concrete floor and having the walls pointed. During their ownership of 6031, neither plaintiff nor her husband ever sought permission from MS or defendants to use the Stone Garage, and, in fact, in 2006, MS sought permission from plaintiff’s husband to use the Stone Garage in order to park her and PS’ car therein, which permission plaintiff’s husband withheld. On April 28, 2015, plaintiff, while at work, was notified that MS had retained workers who were dismantling the Stone Garage. Plaintiff reported to 6031 and encountered a crew of men and a truck bearing the name “Eden Construction.” The crew began to dismantle the portion of the garage that was on 6030 prompting plaintiff to call the police. When the police reported to the scene, MS told them that the Stone Garage was her property and the police declined to intervene. Thereafter, the crew removed a portion of the garage and installed a chain-link fence in the Stone Garage. Plaintiff submits an affidavit by Ron Gelles (RG), who states that he has resided with plaintiff at 6031 since she purchased it in 1997. RG reiterates each and every portion of plaintiff’s affidavit. Plaintiff submits portions of her deposition transcript, wherein she reiterates portions of her affidavit and adds that with regard to the Stone Garage, she and RG attempted to replace the roof, cleaned the garage regularly, constructed new doors that were never installed, made sure no flying animals entered the garage and otherwise took full responsibility for the garage. Plaintiff submits portions of RG’s deposition transcript, wherein he reiterates portions of his affidavit and adds that with regard to the Stone Garage, although the receipts exchanged diring discovery evince only six months of rent payments by FPOA to plaintiff and RG, the garage had been leased to the FPOA by the prior owners well before 1997. RG also states that while he and plaintiff were never told by FM and LM that they owned the Stone Garage, they were told that they had the exclusive right to use it. Plaintiff submits deeds5 for 6030 and 6031, which evince that on April 6, 1979, FM and LM purchased 6031 from Lynch, on June 20, 1997, plaintiff purchased 6031 from FM and LM, on September 24, 1973 PS and MS purchased 6030 from Lynch, and on February 9, 1993, MS acquired 6030 upon PS’ death from PS’ estate. Plaintiff submits two diagrams/drawings of the land upon which 6030 and 6031 sit. The first is a diagram from the New York City Department of Finance, which depicts the general location of the properties, relative to each other, and relative to the street/roadways that the properties abut. Specifically, within the drawing, 6031 is directly north and abuts 6030, such that the southern portion of 6031 abuts the northen portion of 6030. The properties are situated between two avenues, such that the eastern portions of the properties abut Huxley Avenue and the western portions abut Spencer Avenue. The second diagram — a parcel drawing — depicts, as relevant, the location of the Stone Garage relative the properties. Per the drawing, the Stone Garage sits between both 6030 and 6031, such that the property line of record between both properties nearly bisects the garage in half. It appears that a greater portion of the garage sits on the 6031′s property. The drawing also indicates that the portion of the Stone Garage that sat on 6030′s property as well as a portion that sat on 6031′s property was removed. Plaintiff submits a document titled “Closing Agreement,” dated June 20, 1997, between herself, FM, and LM and an affidavit from FM and LM. Section 1 of the agreement states that [t]he parties acknowledge that: (a) certain encroachments may exist by the improvements on the Premises onto the property adjoining on the South, (b) certain encroachments may exist by the improvements on the property adjoining on the South onto the Premises, (c) an easement may exist over a portion of the Premises by the owner of the property adjoining on the South, and (d) the garage which is partially on the Premises also lies partially on the property adjoining to the South (emphasis added). Section 3 of the affidavit states that [d]uring the period of our ownership we utilized the full garage on the premises despite the fact that the survey indicates the garage to be partially on the subject property adjoining on the south. During the period of our ownership we maintained the garage, rented it to a tenant and retained the income therefrom, believing we had the right to do so. During such period no claim was made against us by the adjoining owner for any portion of the rental income. Plaintiff submits a several sets of photographs, only two which merit discussion. The first are a set of 15 photographs, which per her affidavit depict the Stone Garage. The photographs depict a stone house-like structure with three stone walls, containing no doors, with wooden beams at the top of the walls, upon which sits a roof that appears to be made of wood. One of the photographs depicts a vehicle inside the Stone Garage, others depict wooden pallets, a mattress and an orange traffic tower. Per plaintiff’s affidavit the vehicle in the garage belonged to plaintiff’s guest, while all the remaining items belonged to RG. The second set of photographs, a set of 10, depict the stone garage, per plaintiff’s affidavit, as and after it was dismantled. The photographs essentially depict half of what had previously been the Stone Garage. Specifically, within the photos, half of the Stone Grage has been demolished and a chain-link fence has been erected alongside the remaining half, which previously was the halfway point of the garage’s interior. The photographs also depict a truck bearing the name “Eden General Construction Inc.” (Eden). Plaintiff submits eight check receipts, which indicate that between March 1, 1998 and November 1, 1998, FPOA paid RG $135 every month. Plaintiff also submits a letter from Deborah A. Beers, Managing Agent for FPOA, dated June 9, 1998, wherein she states that FPOA has rented the garage at 6031 for at least eight years, would continue to rent the same, and would tender payment in furtherance thereof to plaintiff and RG. Plaintiff submits an invoice from Eden to MS, wherein Eden charges MS $5,800 for “[r]emoval of construction debris from collapsed garage.” Based on the foregoing, plaintiff establishes prima facie entitlement to summary judgment with regard to her cause of action to quiet title to the Stone garage and the land upon which it sat on a theory of adverse possession. As a result, plaintiff also establishes summary judgment on her second cause of action seeking a declaratory judgment with regard to her ownership of the Stone Garage and portion of 6030′s land on which it sat. As discussed above, the proponent of an action to quite title must establish that it holds title to the property in question, or that the opponent’s claim is without merit (X & Y Dev. Group, LLC at 733; 1259 Lincoln Place Corp. at 1005; White Sands Motel Holding Corp. at 1074; 5000, Inc. at 677; Clochessy at 1009). As relevant here, in an action to quiet title, a party who demonstrates that it acquired title to property by adverse possession establishes entitlement to summary judgment (Ray at 158). Former RPAPL §522, prescribed the essential elements of a claim for adverse possession, stating that in an action for adverse possession, not founded on a written instrument, the proponent of adverse possession had to establish that the property/land “has been usually cultivated or improved” (RPAPL former §522[1]) or that the property “has been protected by a substantial enclosure” (RPAPL former §522[2]). Substantively, pursuant to prevailing law, the proponent of adverse possession must demonstrate that the possession of the relevant property was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years (Estate of Becker at 81; Ray at 159; Children’s Magical Garden, Inc. at 80; Pritsiolas at 649; Shilkoff at 976; Ram at 1205; Corigliano at 1121; Joseph at 125). To satisfy former RPAPL §522, the proponent of adverse possession must also establish that the land in question was “usually cultivated or improved” or that the land “has been protected by a substantial enclosure” (RPAPL former §522[1] and [2]; Estate of Becker at 81; Ray at 160; Children’s Magical Garden, Inc. at 80; Pritsiolas at 649; Ram at 1205; Corigliano at 1121-1122). Here, with her evidence, plaintiff establishes that she adversely possessed the Stone Garage and to the extent it sat on land belonging to 6030, such land as well. Specifically, based on the deeds submitted by plaintiff and the parcel drawing for the instant depicting 6030, 6031, the Stone garage, and the land upon which it sat, it is clear that a little less than half of the Stone Garage sat on property, which was never included in the deed to 6031, but which did, per the deeds, comprise part of 6030′s property. Thus, it is clear that the portion of the garage itself and the portion which sat on 6030′s property was never legally plaintiff’s. However, both plaintiff and RG’s affidavit establish that since at least 1997, when they purchased 6031 from LM and FM, they exclusively used the garage to either park their vehicles therein, that of their guests, or the FPOA, and/or to store materials therein. The foregoing affidavits also establish that they used the Stone Garage absent any permission from MS or defendants and that they solely maintained the garage and made improvements thereto. Significantly, both plaintiff and RG’s affidavits establish that they replaced the Stone Garage’s floor, and pointed its bricks. Additionally, plaintiff’s deposition transcript establishes that they also prevented any animals from living in the Stone Garage. Lastly, the foregoing affidavits not only establish that neither plaintiff nor RG ever sought permission to use the garage, but also establish that RG denied a request by MS to use the Stone garage. For purposes of adverse possession, the foregoing sufficiently establishes each and every element required by prevailing law. First, plaintiff’s possession was hostile. To be sure, hostility, merely means that the adverse possessor asserts a right to the property/land and uses it in a manner which is “adverse to the title owner and also in opposition to the rights of the true owner” (Estate of Becker at 81; Walling at 232; Monnot at 245). Here, by using the garage, maintaining it, allowing others to use it while concomitantly depriving MS and defendants of such right, it is clear that plaintiff and RG used the Stone Garage and, thus, the land upon which it sat, in opposition to MS and defendants’ rights — namely the rights of ownership conveyed to them by the deed to 6030. Second, the use of the Stone Garage by plaintiff and RG was open and notorious. Indeed, with respect to whether the proponent of adverse possession actually used the property/land in an open and notorious manner, regular cultivation, improvement and inclosure of another’s land sufficiently establishes the same (Ray at 160). Here, as noted above, plaintiff and RG maintained the Stone Garage as if it were theirs by pointing its walls, replacing its floors, removing and then purchasing new doors. The foregoing is sufficient to allow this Court to hold that the maintenance and improvement performed by plaintiff and RG comprise the “usual [and] ordinary cultivation and improvement of similar lands by thrifty owners” (Ramapo Mfg. Co. at 373; LS Mar., LLC at 1106; Wilcox at 1365). Third, the evidence proffered by plaintiff sufficiently establishes that she and RG took possession of the Stone Garage and that possession was continuos from 1997 through 2015, when MS demolished a portion thereof. Possession sufficient to satisfy prevailing law is established when the proponent of adverse possession “use[s] or [is] physical[ly] presen[t] on the property [since it] is the only means of giving notice to the record owner of a hostile claim” (Ray at 160). Here, the evidence establishes that not only were plaintiff and RG continuously and physically present in the Stone Garage, but that their property was continuously stored therein. Fourth, the record establishes that the use of the Stone Garage was exclusive, meaning that only plaintiff, RG and those to whom they gave permission were allowed to use it. Exclusivity requires proof that the adverse possessor solely maintains the property/land as if it were his/her own” (Estate of Becker at 83; Beddoe at 819). To that end, provided that the adverse possessor uses land/property in ways that are separate and exclusive from the general use, exclusivity is not negated merely because others are permitted to also use the property/land (Estate of Becker at 83; Pirman at 363; Pro-Fac Co-op., Inc. at 444). Here, plaintiff and RG used the garage in the only ways that such a structure can be used by occupying with their cars, those belonging to others, and by storing their belongings therein. While the foregoing is enough to hold that plaintiff adversely possessed the Stone Garage and the portion of 6030′s land upon which it sat, because the Stone Garage had been usually cultivated or improved, plaintiff also establishes that the Stone Garage was a substantial enclosure. With regard to substantial enclosure, the inquiry is whether the area in dispute is significantly enclosed by some physical structure (168-170 Flushing Ave, LLC at 743; Warren at 594; Bassett at 569), for which enclosure the proponent of adverse possession satisfies all the elements of adverse possession (168-170 Flushing Ave, LLC, at 743; Warren at 594; Bassett at 569). Here, it is beyond cavil that a garage, having three walls, a roof, a floor, and at one point doors, is, as a matter of law, a substantial enclosure. As such, and as already discussed, to the extent that plaintiff established that with respect to the garage, it hostilely, openly and notoriously, exclusively, and continuously possessed the same, plaintiff establishes that she adversely possessed the same. Therefore, with regard to its causes of action to quiet title and for declaratory judgment, plaintiff establishes prima facie entitlement to summary judgment. Nothing submitted by defendants raises an issue of fact sufficient to preclude summary judgment with respect to the first two causes of action seeking, inter alia, to quiet title with respect to the Stone Garage and the portion of defendants’ land upon which it sat on grounds of adverse possession. In opposition to the instant motion, to the extent relevant, defendants submit an affidavit by defendant PIERRE P. SAUVAGE (PPS), wherein he states, in relevant part, the following. PPS is the executor of MS’ estate. PPS states that the Stone Garage had not operated as a garage for at least 30 years and that plaintiff, MS and/or PS were neither joint tenants nor tenants in common. PPS also states that the Stone Garage was not enclosed since it lacked windows, doors, and a roof. Moreover, because anyone could walk inside the Stone Garage, its use by plaintiff was not exclusive. PPS states that the limited maintenance and improvement performed by plaintiff and RG to the Stone Garage — the attempted replacement of the roof, redoing all the bricks, and pointing the stones — was insufficient for purposes of adverse possession. Lastly, PS states that defendants, LM, MS, and FM had an agreement, whereby it was agreed that LM and FM could use the Stone Garage. Such agreement continued until 6031 was conveyed to plaintiff. The foregoing as well as all the other evidence submitted by defendants is insufficient to raise an issue of fact sufficient to preclude summary judgment. First, to the extent that both counsel for defendants and PPS6 assert that because MS, PS, and then defendants had legal title to the Stone Garage, or at least a portion thereof, plaintiff cannot aversely possess it or the portion of 6030′s land upon which it sat, such argument is so nonsensical that at best it is bizarre and at worst, it is frivolous. Indeed, the very essence of adverse possession is the acquisition of title to property that, but for the adverse possession, is legally owned by another. Indeed, if legal ownership of property prevented its adverse possession, then there would be no cause of action for adverse possession. In many ways, adverse possession is essentially the legal conversion of another’s property, whereby through behavior, the adverse possessor legally converts or divests the owner of legal title. Accordingly, to the extent that, as urged, the foregoing precludes a finding that plaintiff’s use of the Stone Garage could neither be hostile nor exclusive, the assertion is meritless. Second, contrary to defendants’ contention, the Stone Garage is a substantial enclosure, part of which sat on 6030′s property. While it is true, per the record, that for many years the Stone Garage had no door, had holes on its ceiling and was missing windows, this does not negate the fact that it was — certainly prior to its partial demolishment — a substantial enclosure. As discussed above, whether something constitutes a substantial enclosure hinges on whether the area in dispute is significantly enclosed by some physical structure. For this reason, and dispositive here, a garage has been deemed a substantial enclosure (168-170 Flushing Ave, LLC at 743), as has chicken wire and chain link fencing (Warren at 594). Here, the garage, with its very thick walls and a roof — albeit in a state of disrepair — is akin to, and, in fact, more of a physical structure than the retaining wall enclosing a strip of land in Bassett, which the court held was a substantial enclosure (id. 569). Third, even if, as urged by defendants, the garage was, with its lack of doors, accessible by the public, such use by the public — the mere access to the interior of the garage — was markedly different than that use to which plaintiff and RG state they put the garage, such that it does not militate against adverse possession. To be sure, provided that the adverse possessor uses land/property in ways that are separate and exclusive from the general use, exclusivity is not negated merely because others are permitted to also use the property/land (Estate of Becker at 83; Pirman at 363; Pro-Fac Co-op., Inc. at 444). To be sure, in Estate of Becker, even though plaintiff allowed others to use the dock which was the subject of adverse possession, the court nevertheless found that plaintiff had satisfied the element of exclusive use (id. at 83-84). Fourth, contrary to defendants’ assertion, plaintiff and RG’s maintenance of the garage is sufficient to establish that they used the garage openly and notoriously. Indeed, what constitutes sufficient cultivation and improvement necessarily varies based on the property, its location and the uses to which it can be put (Ramapo Mfg. Co. at 373; Van Valkenburgh at 104; LS Mar., LLC at 1106; Wilcox at 1365 [3d Dept 2011]). However, at the very least, the activities should be those that comprise the “usual [and] ordinary cultivation and improvement of similar lands by thrifty owners” (Ramapo Mfg. Co. at 373;LS Mar., LLC at 1106; Wilcox at 1365). Here, at her deposition, plaintiff testified that she cleaned the garage regularly and repointed the bricks thereat. Moreover, in their affidavits both plaintiff and RG stated that they replaced the floor of the Stone Garage and had new doors made. Accordingly, the fact that they could have done more is not dispositive since the record evinces that they solely maintained the Stone Garage and did so in a way consistent with its use. Lastly, defendants’ attempt to create an issue of fact with regard to their permissive use of the Stone Garage is unavailing. With respect to permission, PPS stated that PS, MS, and defendants had an agreement with FS and LS, whereby FS and LS where allowed to use Stone Garage when they owned 6031. In support of that statement, PPS asserts that “[t]his agreement was confirmed in a telephone call with Linda Monssen on November 18, 2018.” Counsel for defendants also states that he spoke with Linda Monssen [] personally on November 18, 2018…[and that] [d]uring that conversation Linda Monssen confirmed that she and Maria Sauvage (and Paul Sauvage when he was alive) had an agreement that Monssen[s] could use the subject garage, provide[d] they maintained it and that they would never make a claim to the land that it sits upon…Your affirmant believes that this statement against interest is admissible in its current form, I have also tried to get in contact with Linda Monssen to reduce her statement against interest to writing…Unfortunately, I have been advised that Linda Monssen is undergoing extensive treatment for cancer and we have not been able to get in touch with her again. (NY St Cts Elec Filing [NYSCEF] Doc No. 243 at 2). The foregoing statements by PPS and counsel for defendants constitute inadmissible hearsay, which cannot create an issue of fact sufficient to preclude summary judgment. Preliminarily, since counsel’s affirmation and its contents “ha[ve] no probative weight and cannot raise a triable issue” of fact sufficient to preclude summary judgment (id. at 270; see Zuckerman at 563), the same cannot raise an issue of fact. Similarly, PPS’ assertion — regarding an agreement that he never actually saw or heard — constitutes double hearsay since it appears that his basis of knowledge for the agreement is what counsel told him that LM told counsel. Putting aside the double hearsay issue, LM’s statement is not, in any event — as urged — a statement against interest. A statement against interest is an exception to the proscription against hearsay and may be received into evidence if the declarant is unavailable, the declaration when made was against the pecuniary, proprietary or penal interest of the declarant, the declarant had competent knowledge of the facts, and there was no probable motive to misrepresent the facts (People v. Harding, 37 NY2d 130, 135 [1975]; Basile v. Huntington Util. Fuel Corp., 60 AD2d 616, 617 [2d Dept 1977]). Here, where LM is not a party to the instant action and has no current ownership interest in 6031, it is hard to fathom how her admission of permissive use of the Stone Garage is against her pecuniary and/or proprietary interest. Accordingly, her statement constitutes inadmissible hearsay. Additionally, where here, the substance of the statement purportedly made by LM is that she and FM had been granted permission to use the garage, there is no basis to excuse the failure to provide her statement in admissible form on some theory that her statement could change the outcome of this case at trial. Indeed, while it is true that in opposing an application for summary judgment, if there is an excuse for the same, the opponent may be permitted to proffer inadmissible evidence (Friends of Animals at 1067-1068; Johnson at 270), here LM’s potential testimony at trial would only be probative on her and FM’s permissive use of Stone Garage prior to 1997, before plaintiff purchased 6031 and had access to the same. LM’s statement could not have any bearing on plaintiff’s use of the Stone Garage since 1997, for a period in excess of 10 years, which period the record demonstrates was without any permission. TRESPASS, NEGLIGENCE, PRIVATE NUISANCE, CONVERSION Plaintiff’s motion seeking summary judgment solely on the issue of liability with respect to her remaining causes of action is denied. As briefly discussed above, liability for the torts alleged in each and every one of the remaining causes of action hinges on MS’ conduct in dismantling a part of the Stone Garage. Whether that conduct was tortious hinges on whether MS believed that she owned the Stone Garage. On this record, but for this Court’ instant decision granting plaintiff summary judgment with respect her causes of action seeking title of the Stone Garage and the portion of 6030′s land upon which it sat, the record demonstrates that MS had reason to believe that the Stone Garage, to the extent it sat on a portion of 6030′s land, was owned by her. The essence of trespass to real property is injury to the right of possession (Bloomingdales, Inc. v. New York City Tr. Auth., 13 NY3d 61, 66 [2009]). Accordingly, the elements of an action sounding in trespass are “an intentional entry onto the land of another without justification or permission” (Volunteer Fire Ass’n of Tappan, Inc. v. County of Rockland, 101 AD3d 853, 855 [2d Dept 2012]; Carlson v. Zimmerman, 63 AD3d 772, 773 [2d Dept 2009]; Woodhull v. Town of Riverhead, 46 AD3d 802, 804 [2d Dept 2007]). Trespass is also defined as “the invasion of a person’s right to exclusive possession of his land” (Berenger v. 261 W. LLC, 93 AD3d 175, 181 [1st Dept 2012]). “A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” (Colavito v. New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]; see Peters Griffin Woodward, Inc. v. WCSC, Inc., 88 AD2d 883 [1st Dept 1982]). Thus, to establish conversion, a plaintiff (1) must demonstrate legal ownership or an immediate superior right of possession to a specific identifiable thing; and (2) that the defendant exercised an unauthorized dominion over that property to the exclusion of the plaintiff’s rights (Meese v. Miller, 79 AD2d 237, 242-243 [4th Dept 1981]; Indep. Discount Corp. v. Bressner, 47 AD2d 756, 757 [2d Dept 1975]). Property in an action for conversion must be tangible personal property (Indep. Discount Corp. at 757), or money (id. at 757; Peters Griffin Woodward, Inc. at 884). A cause of action for private nuisance arises when “the wrongful invasion of the use and enjoyment of another’s land is intentional and unreasonable” (Copart Indus., Inc. v. Consol. Edison Co. of New York, Inc., 41 NY2d 564, 570 [1977]). Thus, the elements of a private nuisance are (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act (id. at 570; Berenger v. 261 W. LLC, 93 AD3d 175, 182 [1st Dept 2012]; 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d 330, 334 [1st Dept 2010], affd as mod and remanded, 16 NY3d 822 [2011]; Aristides v. Foster, 73 AD3d 1105, 1106 [2d Dept 2010]; Donnelly v. Nicotra, 55 AD3d 868, 868 [2d Dept 2008]). With respect to the intent element, an invasion of another’s interest in the use and enjoyment of land is intentional when “the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct” (Copart Indus., Inc. at 571 [internal citation and quotation marks omitted]; see Berenger at 183). Based on the foregoing, it is clear that whether it is the cause of action sounding in trespass, conversion, or private nuisance, knowledge that the property entered (trespass), or the property taken (conversion) or the property whose use of was interfered with (private nuisance), actual knowledge that the property did not belong to the tortfeasor is required. Here, however, the deed provided to MS upon the purchase of 6030, which plaintiff submitted, included the portion of 6030′s land upon which the Stone Garage sat. Plaintiff and RG, as they must, concede as much, asserting that the Stone Garage essentially straddled the legal property line between 6030 and 6031. Accordingly, since plaintiff did not acquire title of the Stone Garage and the land upon which it sat until the issuance of this Decision and Order, plaintiff’s own papers raise an issue of fact with regard to liability on the remaining causes of action. Accordingly, plaintiff fails to establish prima facie entitlement to summary judgment on the remaining causes of action. AFFIRMATIVE DEFENSES AND COUNTERCLAIM Plaintiff’s motion seeking dismissal of defendants’ affirmative defenses is denied as moot. Significantly, in granting summary judgment in favor of plaintiff on its salient causes action concerning title, this Court necessarily determines that the affirmative defenses fail as a matter of law and therefore do not have to be affirmatively dismissed. Plaintiff’s motion seeking summary judgment with regard to defendants’ counterclaim seeking damages incurred in removing a portion of the Stone Garage and exemplary damages premised on plaintiff’s interference with the use of defendants’ property — namely all the areas at issue in this action, including the Stone Garage and the portion of 6030′s land upon which it sat — is granted, in part. While not expressly pleaded, the counterclaim sounds in trespass, conversion and/or private nuisance, each of which requires legal title to the property at issue. Here, since this Court determined that plaintiff is entitled to title of the Stone Garage and the portion of 6030 on which it sat and because defendants cannot recover damages incurred in demolishing a garage and for the interference with a portion of property/land that as of 2007, they never owned, the portion of the motion seeking summary judgment and dismissal of the counterclaim seeking compensatory damages for expenses incurred in demolishing the Stone Garage is granted. The same is true for the portion of the counterclaim seeking exemplary damages arising from the interference with defendants’ use of the Stone Garage and the portion of 6030′s land on which it sat. However, since the counterclaim for exemplary damages is premised on the interference with all areas at issue in this action, title to three of which remains unresolved, the motion seeking summary judgment and dismissal of the portion of the counterclaim for exemplary damages, directed thereto is denied. It is hereby ORDERED with that plaintiff is declared the owner of the Stone Garage and the portion of 6030′s land upon which it sat. It is further ORDERED that defendants’ counterclaim for compensatory damages be hereby dismissed with prejudice. It is further ORDERED that all parties appear for a Settlement Conference on March 20, 2023 at 10am. It is further ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon defendants within thirty (30) days hereof. This constitutes this Court’s decision and Order. Dated : February 21, 2023
