68 A.D.3d 1808
N.Y. App. Div.
2009
Stevenson thm

EUGENE TAILLIE et al., Plaintiffs, and KEVIN TAILLIE, Appellant, v ROCHESTER GAS AND ELECTRIC CORPORATION et al., Respondents

[891 NYS2d 786]

Supreme Court, Appellate Division, Fourth Department, New York

Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

Memorandum: Supreme Court properly denied plaintiff‘s motion in this divorce action seeking an order determining that the parties’ premarital agreement is not valid and enforceable as an opting out agreement pursuant to Domestic Relations Law § 236 (B) (3). The premarital agreement, which was signed by the parties in Massachusetts at a time when both parties resided there, contains a choice of law clause providing that “[t]he validity and construction of this Agreement shall be determined in accordance with the laws of the Commonwealth of Massachusetts.” It is well settled that courts will enforce a choice of law clause ” ‘so long as the chosen law bears a reasonable relationship to the parties or the transaction’ ” (Friedman v Roman, 65 AD3d 1187, 1188 [2009], quoting Welsbach Elec. Corp. v MasTec N. Am., Inc., 7 NY3d 624, 629 [2006]). “[G]iven the ‘strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements’ ” (Van Kipnis v Van Kipnis, 11 NY3d 573, 577 [2008], quoting Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]), we see no reason to disregard the parties’ intent to apply the law of Massachusetts, the state in which the parties resided when they signed the agreement and the state in which they signed it (see Friedman, 65 AD3d at 1188; see generally Lederman v Lederman, 203 AD2d 182 [1994]). Finally, insofar as the statement of the court “that the terms of the agreement seem clear and reasonable” may be deemed to be a determination that the terms of the agreement “were fair and reasonable at the time of the making of the agreement and are not unconscionable” (Domestic Relations Law § 236 [B] [3]), we note that the statute expressly provides that such a determination is to be made “at the time of entry of final judgment” (id.), and thus such a determination is not to be made at this juncture of the litigation. Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

Memorandum: Plaintiffs commenced this action seeking, inter alia, a determination that they had acquired title to a portion of defendants’ property by adverse possession. Contrary to the contention of Kevin Taillie (plaintiff), Supreme Court properly granted defendants’ motion for summary judgment dismissing the remaining cause of action, seeking title to the property by adverse possession. The court previously had granted those parts of a prior motion by defendants that sought summary judgment dismissing the remaining causes of action.

Where, as here, “the entry upon [the property] has been by permission or under some right or authority derived from the owner[s], adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor[s] thereafter [have] assumed the attitude of hostility to any right in the real owner . . . , for if the first possession is by permission it is presumed to so continue until the contrary appears” (Hinkley v State of New York, 234 NY 309, 316-317 [1922]; see Gallea v Hess Realty Corp., 128 AD2d 274, 275-276 [1987], affd 71 NY2d 999 [1988]; Ropitzky v Hungerford, 27 AD3d 1031, 1031-1032 [2006]). Here, defendants met their burden on the motion by establishing as a matter of law that two of the five elements of adverse possession were not present, i.e., that plaintiff‘s possession was not hostile and under a claim of right, nor did it continue for the requisite 10 years (see Walling v Przybylo, 7 NY3d 228, 232 [2006]). We reject the contention of plaintiff that he raised a triable issue of fact in opposition to the motion by submitting an affidavit in which he asserted that he offered to purchase the property merely to avoid litigation and that he took other actions demonstrating that his possession of the property was hostile and under a claim of right. The majority of those allegations concern actions that fall outside of the relevant 10-year period, and the remaining allegations are merely ” ‘an attempt to avoid the consequences of [plaintiff‘s] prior deposition testimony by raising feigned issues of fact’ ” (Martin v Savage, 299 AD2d 903, 904 [2002]; see Richter v Collier, 5 AD3d 1003 [2004]).

Plaintiff further contends that the motion should have been denied in view of the law of the case doctrine, by virtue of the fact that the issues raised were decided when that part of defendants’ prior motion with respect to the adverse possession cause of action was denied. We reject that contention, particularly because defendants’ instant motion was based in part on plaintiff‘s deposition testimony that was not elicited until after the entry of the prior order (see Hook v Village of Ellenville, 46 AD3d 1318, 1319 n [2007]; cf. Estate of Sassa v Alfieri, 19 AD3d 361 [2005]). In addition, although we are cognizant of “the rule discouraging successive summary judgment motions” (Piazza v Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059, 1060 [2004]), we conclude that “there was sufficient cause for defendant[s‘] present motion” (Welch Foods v Wilson, 277 AD2d 882, 883 [2000]).

We have considered plaintiff‘s remaining contention and conclude that it is without merit. Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

SCUDDER, P.J.

HURLBUTT, SMITH AND CENTRA, JJ.

司法 judgments often list the judges at the end of the memorandum as well as at the start. Here the text includes it at the end of the second memorandum. The instructions say to convert only the first main opinion if there are multiple. However, the screenshot for page 1 starts with a memorandum, then a case caption for Eugene Taillie, which continues into page 2 as a memorandum. The Eugene Taillie case is the main one with the full caption. The very first paragraph on page 1808 appears to be the end of a previous case (about a premarital agreement) because the caption for Taillie v. Rochester Gas appears after it. Following the instruction: “Skip partial content from a previous case that appears at the beginning of the document.” and “convert only the MAIN opinion — the one with a complete case caption and full opinion body.” Refined Output:

EUGENE TAILLIE et al., Plaintiffs, and KEVIN TAILLIE, Appellant, v ROCHESTER GAS AND ELECTRIC CORPORATION et al., Respondents

[891 NYS2d 786]

Supreme Court, Appellate Division, Fourth Department, New York

Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

Memorandum: Plaintiffs commenced this action seeking, inter alia, a determination that they had acquired title to a portion of defendants’ property by adverse possession. Contrary to the contention of Kevin Taillie (plaintiff), Supreme Court properly granted defendants’ motion for summary judgment dismissing the remaining cause of action, seeking title to the property by adverse possession. The court previously had granted those parts of a prior motion by defendants that sought summary judgment dismissing the remaining causes of action.

Where, as here, “the entry upon [the property] has been by permission or under some right or authority derived from the owner[s], adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor[s] thereafter [have] assumed the attitude of hostility to any right in the real owner . . . , for if the first possession is by permission it is presumed to so continue until the contrary appears” (Hinkley v State of New York, 234 NY 309, 316-317 [1922]; see Gallea v Hess Realty Corp., 128 AD2d 274, 275-276 [1987], affd 71 NY2d 999 [1988]; Ropitzky v Hungerford, 27 AD3d 1031, 1031-1032 [2006]). Here, defendants met their burden on the motion by establishing as a matter of law that two of the five elements of adverse possession were not present, i.e., that plaintiff‘s possession was not hostile and under a claim of right, nor did it continue for the requisite 10 years (see Walling v Przybylo, 7 NY3d 228, 232 [2006]). We reject the contention of plaintiff that he raised a triable issue of fact in opposition to the motion by submitting an affidavit in which he asserted that he offered to purchase the property merely to avoid litigation and that he took other actions demonstrating that his possession of the property was hostile and under a claim of right. The majority of those allegations concern actions that fall outside of the relevant 10-year period, and the remaining allegations are merely ” ‘an attempt to avoid the consequences of [plaintiff‘s] prior deposition testimony by raising feigned issues of fact’ ” (Martin v Savage, 299 AD2d 903, 904 [2002]; see Richter v Collier, 5 AD3d 1003 [2004]).

Plaintiff further contends that the motion should have been denied in view of the law of the case doctrine, by virtue of the fact that the issues raised were decided when that part of defendants’ prior motion with respect to the adverse possession cause of action was denied. We reject that contention, particularly because defendants’ instant motion was based in part on plaintiff‘s deposition testimony that was not elicited until after the entry of the prior order (see Hook v Village of Ellenville, 46 AD3d 1318, 1319 n [2007]; cf. Estate of Sassa v Alfieri, 19 AD3d 361 [2005]). In addition, although we are cognizant of “the rule discouraging successive summary judgment motions” (Piazza v Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059, 1060 [2004]), we conclude that “there was sufficient cause for defendant[s‘] present motion” (Welch Foods v Wilson, 277 AD2d 882, 883 [2000]).

We have considered plaintiff‘s remaining contention and conclude that it is without merit. Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

Thomas Filiaci, Appellant, v Jeri-Lynn Filiaci, Respondent. [891 NYS2d 569]

(Note: Thomas Filiaci is a new caption appearing at the very end, following the instructions I stop after the main opinion.) One detail: the word “possessor[s]” in the OCR on page 1809, OCR says “possessor[s]” while the screenshot shows “possessor[s]” but in the OCR the “s]” is actually “s] thereafter [have]“. Wait, looking at the image: “...renounced and the possessor[s] thereafter [have] assumed...“. The OCR text for page 1809: “possessors] thereafter [have]“. I will follow the image: “possessor[s]“. Re-evaluating the start: the first paragraph (premarital agreement) has no caption above it. It is the end of a case. The instructions say “Skip partial content from a previous case that appears at the beginning of the document.” Thus I start with Taillie v. Rochester Gas. Final refinement:

EUGENE TAILLIE et al., Plaintiffs, and KEVIN TAILLIE, Appellant, v ROCHESTER GAS AND ELECTRIC CORPORATION et al., Respondents

[891 NYS2d 786]

Supreme Court, Appellate Division, Fourth Department, New York

MEMORANDUM

Memorandum: Plaintiffs commenced this action seeking, inter alia, a determination that they had acquired title to a portion of defendants’ property by adverse possession. Contrary to the contention of Kevin Taillie (plaintiff), Supreme Court properly granted defendants’ motion for summary judgment dismissing the remaining cause of action, seeking title to the property by adverse possession. The court previously had granted those parts of a prior motion by defendants that sought summary judgment dismissing the remaining causes of action.

Where, as here, “the entry upon [the property] has been by permission or under some right or authority derived from the owner[s], adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor[s] thereafter [have] assumed the attitude of hostility to any right in the real owner . . . , for if the first possession is by permission it is presumed to so continue until the contrary appears” (Hinkley v State of New York, 234 NY 309, 316-317 [1922]; see Gallea v Hess Realty Corp., 128 AD2d 274, 275-276 [1987], affd 71 NY2d 999 [1988]; Ropitzky v Hungerford, 27 AD3d 1031, 1031-1032 [2006]). Here, defendants met their burden on the motion by establishing as a matter of law that two of the five elements of adverse possession were not present, i.e., that plaintiff‘s possession was not hostile and under a claim of right, nor did it continue for the requisite 10 years (see Walling v Przybylo, 7 NY3d 228, 232 [2006]). We reject the contention of plaintiff that he raised a triable issue of fact in opposition to the motion by submitting an affidavit in which he asserted that he offered to purchase the property merely to avoid litigation and that he took other actions demonstrating that his possession of the property was hostile and under a claim of right. The majority of those allegations concern actions that fall outside of the relevant 10-year period, and the remaining allegations are merely ” ‘an attempt to avoid the consequences of [plaintiff‘s] prior deposition testimony by raising feigned issues of fact’ ” (Martin v Savage, 299 AD2d 903, 904 [2002]; see Richter v Collier, 5 AD3d 1003 [2004]).

Plaintiff further contends that the motion should have been denied in view of the law of the case doctrine, by virtue of the fact that the issues raised were decided when that part of defendants’ prior motion with respect to the adverse possession cause of action was denied. We reject that contention, particularly because defendants’ instant motion was based in part on plaintiff‘s deposition testimony that was not elicited until after the entry of the prior order (see Hook v Village of Ellenville, 46 AD3d 1318, 1319 n [2007]; cf. Estate of Sassa v Alfieri, 19 AD3d 361 [2005]). In addition, although we are cognizant of “the rule discouraging successive summary judgment motions” (Piazza v Frank L. Ciminelli Constr. Co., Inc., 12 AD3d 1059, 1060 [2004]), we conclude that “there was sufficient cause for defendant[s‘] present motion” (Welch Foods v Wilson, 277 AD2d 882, 883 [2000]).

We have considered plaintiff‘s remaining contention and conclude that it is without merit. Present—Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

Scudder, P.J., Hurlbutt, Smith and Centra, JJ.

per instructions. One correction: the footnote/parenthetical “Present...” should be at the end. Note that the word “bypermission” in OCR on p1809 is “by permission” in image. Rejoining hyphenated “hostil-ity” -> “hostility“.