Rusoff
v.
Engel

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentJul 12, 1982
89 A.D.2d 587 (N.Y. App. Div. 1982)

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July 12, 1982


In an action by plaintiffs, inter alia, to be declared the owners of certain property as a consequence of their adverse possession of the property, in which appellants counterclaimed for ejectment, the appeal is from a judgment of the Supreme Court, Westchester County (Slifkin, J.), dated July 22, 1981, which, after a nonjury trial, was in favor of the plaintiffs and dismissed the counterclaim. Judgment reversed, on the law, and new trial granted, with costs to abide the event. Trial Term determined that the elements of adverse possession had been established by a preponderance of the evidence. Adverse possession must be established by the more stringent and demanding standard of clear and convincing proof ( Van Valkenburgh v. Lutz, 304 N.Y. 95; Gerwitz v. Gelsomin, 69 A.D.2d 992; Whiffen v. Deymark Corp., 128 N.Y.S.2d 757; see 2 N.Y. Jur 2d, Adverse Possession, § 8). This use of an erroneous standard of proof requires reversal. In light of the sharply conflicting trial testimony and the unique position of the trial court in assessing credibility, the correct course is to send this matter back for a new trial. Damiani, J.P., Titone, Weinstein and Bracken, JJ., concur.