Van Gorder v. Masterplanned, Inc.

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be reversed, with costs, and plaintiffs’ motion for summary judgment denied. Inasmuch as a triable issue of fact exists as to whether plaintiffs, who claim to have acquired title to defendant’s property by adverse possession, acknowledged during the stat [1108] utory 10-year period that actual ownership of the property rested with defendant, summary judgment should not have been awarded to plaintiffs. Such a concession, if found by the trier of fact to exist, would negate an essential element of plaintiffs’ adverse possession claim, namely, that they continued to possess the property under a claim of right throughout the statutory period (see, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118, 123; see also, Van Valkenburgh v Lutz, 304 NY 95, 99). Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum. Order reversed, etc.