Opinion
000455-08.
Decided September 5, 2008.
Plaintiff Michael Delahant, by Ronald J. Briggs, Esq., Briggs Norfolk LLP, Lake Placid, NY.
Defendant The Stevenson Society of America, Inc., by John J. Muldowney, Esq., Fischer, Bessette, Muldowney Hunter, LLP, Malone, NY.
This case has been assigned to the undersigned judge for all further purposes, due to the recusal of the Hon. Richard B. Meyer, Judge of the Essex County Court. Defendant has moved pursuant to CPLR 3211[a][7] to dismiss the complaint in lieu of filing an answer. The motion asserts that plaintiff's complaint fails to state a cause of action.
The complaint is attached as Exhibit A to defendant's motion to dismiss. At issue is the ownership of a property referred to informally as "the Cottage," which is located at 44 Stevenson Lane, in the Village of Saranac Lake, Town of St. Armand, Essex County, New York. The moving papers make clear that the Cottage has for many years served partly as a residence, and partly as a museum housing a growing collection of memorabilia relating to the life and writings of the Scottish essayist, poet and novelist, Robert Louis Stevenson (1850 — 1894), who for a time lived and wrote in Saranac Lake. The Cottage has operated over the years as an informal museum and tourist attraction.
Plaintiff asserts in the complaint that from 1952 to 1972 the property was owned and maintained by the Village of Saranac Lake. In 1953 plaintiff's grandparents, John F. Delahant, Sr., and his wife Maude moved into the premises to operate the museum for the village. At some point in time a not-for-profit corporation named The Stevenson Society of America, Inc., [hereafter referred to as The Society] was formed, with its principal office in the Town of St. Armand, Essex County, New York. The complaint asserts that first John F. Delahant, Sr., and later his son, plaintiff's father John F. Delahant, Jr., served as President of The Society. The complaint asserts that in 1972 the Village of Saranac Lake decided that it did not wish to continue its ownership of the premises, and asked The Society to take over ownership and maintenance of the Cottage. The complaint states that The Society did not respond to this overture. From 1972 through 1980 John Delahant, Jr., and Maude lived at the property and operated and maintained it at their own expense. Plaintiff contributed lawn care and painting services. In 1980 plaintiff moved into the property on a full-time basis, and has continued to live there ever since.
Plaintiff asserts that during his occupancy he has renovated the Cottage by installing at his own expense a septic system and insulation; he has renovated an apartment in the premises; he has upgraded the electrical wiring, repaired the porch and roof, replaced windows and performed landscaping, all of which actions the complaint describes as having been done "over the objection of defendant." Complaint ¶ 9. Plaintiff further asserts that at his sole expense he has operated, advertised and "reinterpret" the museum, over the objection of defendant. ¶¶ 10, 11.
Lastly in the complaint, plaintiff asserts that he and his predecessors entered and have been in continuous actual occupation and possession of the premises "adversely to the title of defendant for more than 10 years prior to the commencement of this action under a claim of title in fee simple, exclusive of any other right." ¶ 12. Plaintiff therefore asks that the court declare him to be the fee owner of the premises by adverse possession, and further asks that the court implement this finding either by directing defendant to execute a deed of title from itself to plaintiff, or in the alternative, by imposing a constructive trust on the premises for the value of the improvements made during plaintiff's 28 years of occupancy.
Defendant's motion to dismiss is supported by three affidavits. The first, by defense counsel John J. Muldowney, is dated June 17, 2008. The second is by Susan Allen, also dated June 17, 2008. The third is a supplemental affidavit from John Muldowney, dated June 24, 2008. Mr. Muldowney asserts the following legal arguments. In order to make out a valid claim for adverse possession, the possession must be hostile and under a claim of right, and such possession must be continuous for ten years. Joseph v. Whitcombe, 279 AD2d 122, 125 [1 Dept 2001]. The first flaw in the complaint, Mr. Muldowney asserts, is that it does not allege that plaintiff commenced his possession under a claim of right. Quite to the contrary, he was a guest, invitee or licensee of the record owner, The Society, during his entire period of occupancy, as detailed in the fact affidavit of Ms. Allen. As a licensee (meaning a person having permission to use or occupy the premises), his possession can never ripen into ownership through adverse possession. Joseph, id. at 126, 127.
Mr. Muldowney further avers that the complaint fails to state a cognizable claim for the recognition of a constructive trust of the premises. In order to make out a sufficient claim requiring such a trust, the plaintiff would have to show (1) a confidential or fiduciary relationship; (2) a promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment. See Simonds v. Simonds, 45 NY2d 233[1978]. Defendant asserts that the complaint failed to plead any of the necessary elements of a constructive trust claim, and that as a result, the claim must fail.
By way of factual support for the motion to dismiss, Susan Allen's affidavit states that she is the President of the board of directors of The Society; that The Society owns and operates the Cottage and Museum, and that it houses a collection of Stevenson memorabilia. In 1951 The Society deeded the premises to the Village of Saranac Lake, on condition that if the grantee Village ever ceased to use the premises as a memorial for Robert Louis Stevenson, the title would revert to The Society. See Allen affidavit, Exhibit B. Ms. Allen affirms that the reversionary interest clause was triggered when, apparently, the Village did cease to use the premises as conditioned, and the premises were deeded back from the Village to The Society in 1985 in conformity with the reversionary interest clause in the earlier deed.
Ms. Allen further asserts that when plaintiff moved into physical residence at the premises, the property was owned by the village and maintained by plaintiff's father. Plaintiff had no claim of ownership at that time, when he became a tenant. Plaintiff further knew of the title transfer from the Village to The Society in 1985, and again had no title interest, and made no claim of one at that time. In 1995, Ms. Allen asserts, plaintiff became President of the board of directors of The Society, but resigned that position in 1996, remaining on the board. In 2001 plaintiff also resigned from the board, but continued to maintain the Cottage, and continued to live there with the knowledge, permission and consent of the board of directors of The Society.In plaintiff's 2001 letter of resignation Ms. Allen asserts that plaintiff made clear the fact that he would "continue to function according to the proposed job description I submitted to you last year. It is substantially what I have been doing since 1980 (remember I was a non-member the first sixteen years I was here)." Allen affidavit ¶ 6.
Ms. Allen alleges that in 2005 a dispute arose between The Society and plaintiff about his operation of the Cottage, resulting in an exchange of letters. Quoting one of plaintiff's letters to the board of directors, Ms. Allen notes that plaintiff referred to himself as "occupying my grandparents' part of the house to guard against a rash of vandalism," an idea which plaintiff described the Board as thinking was a good one. This exchange contains no claim of ownership, and merely reflects an arrangement of mutual convenience. In another letter, in February 2005, plaintiff referred to his "rent-free status" as saving The Society money. Plaintiff wrote again in April 2005, underscoring his urgent desire to reach a more formal arrangement with The Society on the terms of his occupancy. In a May 2005 letter (Exhibit G) he acknowledges having moved into the premises "by invitation of [The Society's] President and consent of the Board, to help deter vandalism."
The further exchange of letters and personal confrontations worsened in 2006 and 2007, with both the Board and plaintiff trying to assert control over the assets of The Society, including the Cottage itself. Allen affidavit ¶ 15. In May 2008 the Board notified plaintiff of its intention to begin a proceeding to evict plaintiff from the Cottage. The Society took the position that plaintiff had spent funds of The Society without authorization, and had tried to divert income from visitors to his own control. Only after receiving this letter of intent did plaintiff first assert his claim of title by adverse possession. ¶ 16,17.
In his supplemental affidavit, ¶ 2-6, Mr. Muldowney attaches an article from the local newspaper, The Adirondack Daily Enterprise, in whose June 21, 2008 edition a reporter quoted plaintiff as saying "I never thought I owned this place." The article further quotes plaintiff as saying that since no one at The Society ever gave him direction he just "did what he pleased."
Plaintiff's July 21, 2008 affidavit in response to the motion states that (1) defendant has not operated or maintained the Cottage since 1951 when it transferred title to the Village; (2) the Village installed' plaintiff's grandparents as custodians of the Cottage; (3) in 1972 plaintiff's father, John Delahant, Jr. agreed to take the property off the Village's hands; (4) plaintiff's father paid for repairs and was solely the one to operate the museum until plaintiff returned in 1980 and became the primary caretaker; (5) plaintiff has made sporadic improvements to the premises, using his own money. In ¶ 5 of his affidavit, plaintiff states that "With my investments in time and money, I presumed I was the owner of the property until my death." In ¶ 15 of the same affidavit, plaintiff says that "I believe that I own the Cottage because it has become my mission to preserve it for the enjoyment of future generations."
Plaintiff further reports that following the 1996 death of his father, plaintiff undertook to protect and develop the Cottage and the Stevenson memorabilia associated with it, in recognition of the international historical significance of what he calls a literary shrine. To that end, plaintiff says that he revived The Society, finding board members to serve and guide the organization, but eventually had numerous disagreements with the board about management of the property, leading to the exchange of letters already described, and the commencement of this law suit.
In ¶ 10 plaintiff disagrees with Ms. Allen about how he came to occupy the premises. Mr. Delahant says that he inherited' the building from his father and grandparents because he had been living there with them. Plaintiff also disagrees with the Allen assertion that plaintiff worked for The Society. Plaintiff further asserts that representatives of The Society have harassed him, stolen some of his personal property, and changed the locks. He closes by saying that Mr. Muldowney's reference to the newspaper quotation is taken out of context.
The final affidavit on this motion is the reply affidavit of assistant defense counsel, Matthew McArdle, dated July 29, 2008. Mr. McArdle avers that plaintiff's own affidavit, the only pleading offered in opposition to the motion to dismiss, leaves undisputed the facts that (1) defendant is the record owner of the Cottage property; (2) plaintiff has not alleged that his occupancy of the Cottage was hostile in a legal sense, or under a legal claim of right; and (3) plaintiff has not claimed that defendant made him any promise. Mr. McArdle in effect sums up the defendant's position by saying that at most plaintiff was a licensee, living in the premises initially by request of the defendant and later by sufferance.
When considering a motion to dismiss a complaint, the court must look for unresolved contested issues of material fact. If, after considering the competing claims in light of statutory and decisional precedents, the court finds such issues, it must deny the dismissal, direct that defendant serve and file an answer to the complaint, and allow the case to proceed in litigation. On the other hand, the mere fact that the parties disagree by affidavit does not require that the motion be denied. At this stage the court's job is not to decide factual questions, or to determine credibility or to draw inferences from the proof submitted. Keena v. Hudmor Corp. , 37 AD3d 172 ; Ferrante v. American Lung Assoc., 90 NY2d 623.
In order to establish title by adverse possession, the claimant must prove that possession by the adverse possessor is (1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period of ten years. Walling v. Przybylo , 7 NY3d 228 , 232; Belotti v. Bickhardt, 228 NY 296, 302; Van Valkenburgh v. Lutz, 304 NY 95, 99; Spiegel v. Ferraro, 73 NY2d 622, 624; Ray v. Beacon Hudson Mountain Corp., 88 NY2d 154, 159. Since the acquisition of title by adverse possession is not favored under the law ( Belotti, supra), the claim must be established by clear and convincing evidence. Ray, supra; Van Valkenburgh, supra; and Joseph, supra.
When use of the property has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner. It is also true that if the first possession is by permission it is presumed to so continue until the contrary appears. Hinkley v. State of New York, 234 NY 309, and Lewis v. New York Harlem R.R. Co., 162 NY 202, 220, both quoted in Longshore v. Hoel Pond Landing, Inc., 284 AD2d 815, 816 [3 Dept 2001], lv. denied 97 NY2d 603.
Joseph v. Whitcombe, supra, cited by defendant, holds that on a motion to dismiss an adverse possession claim, the claimant bears the burden of proof by clear and convincing evidence. Since adverse possession cuts off legal claims of title, the doctrine is strictly applied, in the sense that all constituent elements must be proved, and the claimant's acts are to be construed against him, and every inference must be credited that favors a possession subordinate to the true owner's title. Mere license to use the property does not ripen into adverse possession. Joseph, supra, at 126. The possessor's subjective intent is not a factor to be considered under New York law. Joseph, supra, at 127. See also, Real Property Actions and Proceedings Law §§ 501, 521.
"The element of hostile possession does not require a showing of enmity or specific acts of hostility ( Sinicropi v. Town of Indian Lake, 148 AD2d 799,800 [3 Dept 1989]); rather, it can be inferred simply from the existence of the other four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity (citation omitted)." Nazarian v. Pascale, 225 AD2d 381 [1 Dept 1996]. However, in order to rise to the level of a legally hostile possession, the possession must constitute "an actual invasion of or infringement upon the owner's rights." Sinicropi, 148 AD2d, at 800. But, "the ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period (emphasis added)." Walling v. Przybylo , 7 NY3d 228 , 232, quoting Monnot v. Murphy, 207 NY 240, 245, both quoted in Penn Heights Beach Club, Inc. v. Myers , 42 AD3d 602 , 605 [3 Dept 2007].
After careful review and evaluation of all of the moving and opposing papers, the court finds that plaintiff's claim for adverse possession, as asserted in the complaint and amplified in his affidavit, must fail. Plaintiff has shown that unquestionably he has a strong, and admirable, personal connection to the memory of Robert Louis Stevenson, and a deep appreciation of the author's literary importance and local interest. Plaintiff also has clearly gone to great efforts to devote his time and money to upkeep and improvement of the Cottage and of the Stevenson collection there. Yet the court must be concerned with the legal issues, and not with the merit of plaintiff's views about the Stevenson heritage. From a legal standpoint, plaintiff has been a licensee or non-paying tenant of the Cottage, whether owned by the Village or by The Society. The validity and extent of any claims he may have for the value of his improvements or any other claim, and any offsetting claim for rent or other claims The Society may have against plaintiff, are not part of this lawsuit. At no point in time until the assertion of the adverse possession claim in 2008 did plaintiff claim ownership of the premises. Nor was his possession over the years shown to be exclusive of access or possession by The Society. Since his occupancy was clearly by permission of the record owners, plaintiff's physical possession was not hostile to defendant's title.
The crux of plaintiff's claim, as noted earlier in this decision, was his belief that his long-standing and substantial investment of time and energy somehow ripened into at least a life estate, if not outright title by adverse possession (plaintiff's affidavit, ¶ 5), or that he owned the Cottage because of his desire to preserve it for the enjoyment of future generations (plaintiff's affidavit, ¶ 15). This brings to mind a quotation from Robert Louis Stevenson, "Let any man speak long enough, he will get believers." Under the decisional precedent previously cited, a person's subjective beliefs do not assist his claim to title by adverse possession.
Robert Louis Stevenson (1850 — 1894), The Master of Ballantrae, quoted in Bartlett's Familiar Quotations, #8056 online edition, at www.Bartleby.com.
The court also finds the complaint fails to state a cognizable claim for the imposition of a constructive trust. There was no showing of a confidential or fiduciary relationship between the parties. There was no assertion of a promise relevant to title. There was no showing of a title transfer that affected any interest of the plaintiff. And there was no showing that The Society was unjustly enriched by receiving plaintiff's contributions. The financial relationship of the parties, if any, is simply unclear in its details, but clearly does not affect any claim of title or a trust relationship.
Defendant's motion to dismiss the complaint for failure to state a cause of action is therefore granted, with costs and disbursements, but not attorney's fees. So ordered.