Opinion
2002-01533
Argued October 29, 2002.
November 18, 2002.
In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered December 20, 2001, as denied that branch of their motion which was for summary judgment on the first and third counterclaims.
Cuddy Feder Worby, LLP, White Plains, N.Y. (Joshua E. Kimerling of counsel), for appellants.
Freehill, Hogan Mahar, LLP, New York, N.Y. (Lawrence J. Kahn of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
It is well settled that a party who seeks to acquire title to real property by adverse possession must demonstrate, by clear and convincing evidence, that their possession of the property "was hostile, under a claim of right, actual, open, notorious, and exclusive, and it must have been continuous for the statutory period" (Barnett v. Nelson, 248 A.D.2d 656, 657; see Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154, 159; Brand v. Prince, 35 N.Y.2d 634, 636). Further, on a claim not based upon a written instrument, the party must "produce evidence that the subject premises was either `usually cultivated or improved' or `protected by a substantial enclosure' (RPAPL 522, [2]), consistent with the property's character, location, condition and potential uses" (Barnett v. Nelson, supra at 657). In the instant case, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment on their first and third counterclaims, as triable issues of fact exist as to whether the defendants acquired title to the disputed property by adverse possession (see generally Zuckerman v. City of New York, 49 N.Y.2d 557).
In light of this determination, we need not address the plaintiffs' remaining contentions.
O'BRIEN, J.P., FRIEDMANN, H. MILLER and COZIER, JJ., concur.