MAG Associates, Inc. v. SDR Realty, Inc.

In an action, inter alia, seeking a judgment declaring that the plaintiff is the owner of certain real property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered August 8, 1996, which denied its motion for summary judgment and, upon searching the record pursuant to CPLR 3212 (b), granted summary judgment to the defendant, declaring it to be the owner of the subject property. Ordered that the order is modified by deleting the provision thereof which, upon searching the record, granted summary judgment to the defendant, declaring it to be the owner of the subject property; as so modified, the order is affirmed, without costs or disbursements. On July 21,1994, the defendant SDR Realty, Inc. (hereinafter SDR), purchased certain real property located in Yonkers, N. Y., from Cross County Steel & Rock Bit Co. (hereinafter Cross County), the rear portion of which abutted the land which is the subject of this action. SDR alleged that from as early as 1949 until its purchase in 1994, its predecessors in interest had occupied the subject property. In particular, the predecessors of SDR had erected a chain-link fence around the entire property, and constructed several buildings on it. The property, however, was actually part of a railroad right-of-way, known as the Carpet Shop Spur, which had been purchased by the plaintiff MAG Associates, Inc. (hereinafter MAG), in 1993, after being abandoned by Consolidated Rail Corporation the same year. [517] In 1994 MAG conducted a survey of the spur and determined that SDR and several other adjoining landowners were encroaching. After SDR refused to purchase the subject parcel, MAG commenced the instant action. In opposition, SDR submitted an affidavit of the treasurer of Cross County which asserted that in accordance with its interpretation of the deed, Cross County had “always occupied and used [the subject parcel] understanding the property was owned by [it]”. Attached as an exhibit was a 1953 map which depicted the boundaries of Cross County’s (now SDR’s) property in relation to the subject property, as well as to the adjoining lots and river. On the basis of the foregoing, the Supreme Court searched the record and granted summary judgment to SDR. We conclude that summary judgment was improperly granted. The law of adverse possession is well settled. An effective claim of adverse possession has five elements: “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” (Belotti v Bickhardt, 228 NY 296, 302; see also, RPAPL 511; Brand v Prince, 35 NY2d 634; Weinstein Enters, v Pesso, 231 AD2d 516; Armour v Marino, 140 AD2d 752). Further, these elements must be established by clear and convincing evidence (see, Van Valkenburgh v Lutz, 304 NY 95; Belotti v Bickhardt, supra; Rusoff v Engel, 89 AD2d 587). While it is true that an inference of hostile possession or claim of right will be drawn when the other elements of adverse possession are established (see, Sinicropi v Town of Indian Lake, 148 AD2d 799; Weil v Snyder, 25 AD2d 605), an admission by the party in possession prior to the vesting of title that title belongs to another, will destroy the element of hostile possession (see, Soukup v Nardone, 212 AD2d 772). Furthermore, “ ‘[t]he mere possession of land without any claim of right, no matter how long it may be continued, gives no title’ ” (Soukup v Nardone, supra, at 774, quoting Schoenfeld v Chapman, 280 App Div 464, 466; Lewis v Village of Lyons, 54 AD2d 488). At bar, although SDR established four of the elements of. adverse possession by clear and convincing evidence, a question of fact remains as to whether it possessed the property under a claim of right. SDR’s claim of right to the subject property is based on the claim of its immediate predecessor in interest, Cross County. Standing in direct contradiction to both the affidavit of the treasurer of Cross County and the assertion that the subject property was occupied under a mistaken inter [518] pretation of the deed, is the 1953 map submitted by SDR in opposition to the motion by MAG. The map clearly depicts that the subject property is excluded from the property then owned by Cross County. Given the fact that the map was drawn before the end of the applicable limitations period, which was 15 years at the time (former Civ Prac Act § 34; see, CPLR 212; Tarry-town v Woodland Lake Estates, 97 AD2d 338), a triable issue of fact exists (see, Van Gorder v Masterplanned, Inc., 78 NY2d 1106; Lewis v Village of Lyons, supra; compare, Woodrow v Sis-son, 154 AD2d 829). The parties’ remaining contentions are without merit. Santucci, Joy and Altman, JJ., concur.