— In аn action for ejectment from real property and ancillary relief, the defendant appeals, as limited by his brief, (1) from an order and judgment (one paper) of the Supreme Court, Suffolk County (Namm, J.), dated October 2, 1989, which granted the plaintiffs’ motion for partial summаry judgment, determined the boundary line between the parties’ adjoining properties, dismissed his counterclaim to establish title by adverse possession of certain portions thereof, directed him to remove certain encroaching structures and plantings locаted thereon, and ordered him to deliver possession and control thereof to the plaintiffs, and (2), as limited by his brief, from so much of an order of the same court (Namm, J.), entered January 10, 1990, as denied that branch of his motion which was to recuse Justice Namm from presiding over any further proceedings in connection with the action.
Ordered that the order and judgment dated October 2, 1989, is affirmed; and it is further,
Ordered thаt the order entered January 10, 1990, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded one bill of costs.
The plaintiffs Irving Liebman and the Manhattan School of Music commenced an action for ejectment in January 1983 against the appellant. The plaintiffs sought to compel the аppellant to remove certain structures which encroached on their property, including a stockade fence, a wire fence, an outdoor shower, and a wooden stairway. In addition, the plaintiffs sought to recover damages for trespass, а declaration
In 1983 the plaintiffs moved for summary judgment, which motion was denied by Justice Doyle on the ground that there were triable issues of fact as to whether the aрpellant adversely possessed the disputed property for the 10-year statutory period. Thereafter, Justice Orgera was аssigned to the case under the individual assignment system. After five years of further discovery, the plaintiffs brought a second motion for summary judgment. When Justiсe Orgera left the bench in December 1988, Justice Namm was assigned to the case. Although the appellant requested that the plaintiffs’ second motion for summary judgment be referred to Justice Doyle, Justice Namm found this to be unnecessary, and granted the plaintiffs’ motion for summary judgment. We affirm.
Under. RPAPL 522, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that thе parcel was either "usually cultivated or improved” (RPAPL 522 [1]) or "protected by a substantial enclosure” (RPAPL 522 [2]; see, City of Tonawanda v Ellicott Cr. Homeowners Assn.,
By letter dated April 13, 1981, the appellant wrote the Manhattan School of Music offering to purchase the propеrty in dispute. An offer made by one in possession without title to purchase from the record owner during the statutory period is a recоgnition of the record owner’s title and prevents adverse possession from accruing (see, Campano v Scherer, supra, at 643; Stauffer Chem. Co. v Costantini,
The disputed property in this cаse consists of a "pine grove”, a dense growth of pine trees located in the northeastern corner of the plaintiffs’ property, and an "improved strip”, a narrow strip of land contiguous to the appellant’s backyard which has been improved with shrubs, treеs, a lawn, fencing, electrical outlets, and a jungle gym. Although the "improved strip” of property has been undeniably cultivated and imprоved, only minimal amounts of this work were performed beginning on April 13, 1971. The appellant presented evidence that his sister performеd unspecified work prior to Memorial Day of 1971, that his sister went onto the improved strip to remove trees and prune trees starting in 1970, thаt his sister witnessed the clearing, filling, and planting of sod south of her brother’s record boundary line from 1969 to 1971, and that an outdoor shower was present on the property by 1971. Given the nature of the property, the limited work performed beginning on or before April 13, 1971, is insufficient to cоnstitute the "usual cultivation and improvement” necessary to support the appellant’s claim of adverse possession (see, City of Tonawanda v Ellicott Cr. Homeowners Assn.,
Upon examining the record, we find that Justice Namm’s refusal to transfer the case to Justice Doyle did not constitute error (see, Billings v Berkshire Mut. Ins. Co.,
Furthеr, we find that Justice Namm did not err in refusing to recuse himself; Upon learning of the substitution of new counsel for the appellant, Justice Namm сonsidered recusing himself from the case due to a brief social acquaintance with a
We have considered the appellant’s remaining contentions and find them to be without merit. Thompson, J. P., Kunzeman, Lawrence and Balletta, JJ., concur.