Jones v. Breheny

—Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Supreme Court erred in concluding that the parties agreed that defendants’ 1995 survey accurately depicts the boundary between the parties’ adjoining lots. Upon our review of the record, however, we conclude that the uncontroverted expert testimony establishes that the boundary is correctly depicted in that survey. Contrary to the contention of plaintiffs, they failed to prove the elements necessary to establish that they acquired title to the disputed property by adverse possession (see, RPAPL 522; Modrzynski v Wolfer, 234 AD2d 901, 903; see generally, Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159). Thus, we modify the judgment by vacating the first ordering paragraph. Because the court failed to declare the rights of the parties, we further modify the judgment by granting judgment in favor of defendants declaring that defendants are the fee title owners of the entirety of lot 2 as depicted in defendants’ 1995 survey of the parties’ properties. (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J. — Declaratory Judgment.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Kehoe and Lawton, JJ.