637 N.Y.S.2d 785 | N.Y. App. Div. | 1996
—In an action, inter alia, to recover damages for waste, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Underwood, J.), dated August 3, 1994, which, after a nonjury trial, dismissed the complaint and is in favor of the defendant Sebastian R. Sipalo and against him on Sebastian R. Sipalo’s counterclaim for adverse possession.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, the counterclaim is dismissed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings on the complaint.
In this case, the instrument that transferred an interest in an adjoining piece of real property to the defendant Sebastian R. Sipalo specifically excluded the parcel in question. This exclusion is not a mere silence about the parcel of a failure to include it in the description of metes and bounds. The exclusion establishes that Sipalo’s possession of the parcel was not under a claim of right and defeats Sipalo’s contention that he acquired title to the parcel by adverse possession. Accordingly, we remit the matter to Supreme Court, Suffolk County, for further proceedings on the complaint. Rosenblatt, J. P., Hart, Krausman and Goldstein, JJ., concur.