Groman v. Botar

228 A.D.2d 412 | N.Y. App. Div. | 1996

A party seeking to obtain title by adverse possession on a claim not based upon a written instrument must produce evidence that the subject premises was either "usually cultivated or improved” or "protected by a substantial inclosure” (RPAPL 522 [1], [2]), consistent with the property’s character, location, condition and potential uses (see, Morris v DeSantis, 178 AD2d 515; Birnbaum v Brody, 156 AD2d 408). In addition, the party must establish, by clear and convincing evidence, the common-law requirements that the possession of the parcel was hostile, under a claim of right, actual, open, notorious and exclusive, and the possession must have been continuous for the statutory period (see, Brand v Prince, 35 NY2d 634; Belotti v Bickhardt, 288 NY 296; Morris v DeSantis, supra). We agree with the court’s determination that the plaintiffs established these elements by clear and convincing evidence as to the property they claimed title to by adverse possession.

As for the property on which the plaintiffs claimed a prescriptive easement, we find that they established the requisite elements (see, 2239 Hylan Blvd. Corp. v Saccheri, 188 AD2d 524).

The defendants’ remaining contentions are without merit. Bracken, J. P., O’Brien, Joy and Florio, JJ., concur.