Samter v. Maggiore

In an action pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Franco, J.), dated November 21, 2002, as denied their motion for summary judgment, and the defendants cross-appeal from so much of the same order as denied their cross motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, without costs or disbursements. A party seeking to obtain title to real property by adverse possession on a claim not based upon a written instrument must establish that the property was “usually cultivated or improved” or “protected by a substantial inclosure” (RPAPL 522; see Barnett v Nelson, 248 AD2d 656, 656-657 [1998]). In addition, the party must satisfy the common-law requirement of demonstrating, by clear and convincing evidence, that the possession of the property was hostile and under a claim of right, actual, open and notorious, exclusive, and continuous for the statutory period (see Belotti v Bickhardt, 228 NY 296, 302 742 [1920]; Oak Ponds v Willumsen, 295 AD2d 587, 588 [2002]; MAG Assoc. v SDR Realty, 247 AD2d 516, 517 [1998]). In the present case, the Supreme Court properly denied the plaintiffs’ motion and the defendants’ cross motion for summary judgment, as there exist triable issues of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Altman, J.P., H. Miller, Adams and Townes, JJ., concur.