Bruenner v. Clapp

Jun 24, 2002
Versions:295 A.D.2d 549
744 N.Y.S.2d 888
2002 N.Y. App. Div. LEXIS 6760

—In an action, inter alia, pursuant to RPAPL article 15 to compel the determination of claims to real property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lally, J.), entered September 27, 2001, which denied their motion for summary judgment dismissing the defendant’s answer and counterclaim.

Ordered that the order is affirmed, with costs.

In response to the plaintiffs’ prima facie showing of entitlement to judgment as a matter of law, the defendant demonstrated the existence of material issues of fact in support of her claim of adverse possession (see Zuckerman v City of New York, 49 NY2d 557), including whether she “cultivated or improved” the disputed parcel, or if it was “protected by a substantial inclosure” (RPAPL 522), and whether a rational jury could find by clear and convincing evidence that her possession of the parcel was hostile, under a claim of right, actual, open, notorious, exclusive, and continuous for the requisite statutory period (see Katona v Low, 226 AD2d 433). Florio, J.P., Smith, Friedmann and H. Miller, JJ., concur.