Midwood Chayim Aruchim Dialysis Associates, Inc. v. Brooklyn Dialysis, LLC

Mar 29, 2011
Versions:82 A.D.3d 1177
919 N.Y.S.2d 397
919 N.Y.2d 397

other provision of this article, the existence of de minimus [sic] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse” (RPAPL 543 [1]; see L 2008, ch 269, § 8). That section further states: “[n]otwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner‘s property shall be deemed permissive and non-adverse” (RPAPL 543 [2]; see L 2008, ch 269, § 8).

We note that the Appellate Division, Fourth Department, has held that the version of the law in effect at the time that the purported adverse possession allegedly ripened into title is the law applicable to the claim, regardless of whether the action was commenced before or after the effective date of the new legislation (see Franza v Olin, 73 AD3d 44 [2010]). However, we need not reach the issue decided by the Fourth Department in Franza v Olin because the complaint states a cause of action under both the law as it exists today and the law as it existed prior to July 7, 2008.

Standing alone, the allegations that the plaintiff maintained a portable dumpster and cleared the premises of snow and ice are insufficient to establish that the plaintiff‘s use of the premises was non-adverse (see RPAPL 543). However, accepting all of the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference (see Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704 [2008]; Leon v Martinez, 84 NY2d 83, 87 [1994]), even under the more constrictive newly enacted version of the RPAPL, we cannot say as a matter of law that the complaint fails to state a cause of action for adverse possession, particularly in light of the plaintiff‘s allegation that it blacktopped the premises from the edge of a building on its own property to the edge of a curb located on the outer boundary of the defendant‘s property (cf. Sawyer v Prusky, 71 AD3d 1325 [2010]).

The parties’ remaining contentions are without merit. Mastro, J.P., Chambers, Lott and Cohen, JJ., concur.

MIDWOOD CHAYIM ARUCHIM DIALYSIS ASSOCIATES, INC., Appellant, v BROOKLYN DIALYSIS, LLC, Respondent. [919 NYS2d 397]