Plaintiff and Alice Parker Gordon became involved in a romantic relationship in 1953. In 1964 they moved into 322 Halsey Street, Brooklyn, NY a two family house that was owned by Gordon. On August 31, 1987, Gordon died intestate. Plaintiff continued to live in the premises, where he collected rents, paid the expenses and maintained the property. In February of 2003, plaintiff received notice that the defendant was intending to sell the property at auction. Plaintiff commenced this action, asserting that he has obtained title to the property through adverse possession. Defendant moves for summary judgment on the grounds that the plaintiff cannot [*2]establish adverse possession as a matter of law.

In order to establish title by adverse possession, plaintiff must prove that the possession was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious; (4) exclusive and (5) continuous for 10 years (RPAPL §§ 521, 522; Brand v. Prince, 35 NY2d 634, 636). Because the acquisition of title by adverse possession is disfavored, each of these elements must be proven by clear and convincing evidence (Ray v. Beacon Hudson Mountain Corp., 88 NY2d 154, 159)(citations omitted).

In general, proof of open, notorious, continuous and undisputed use gives rise to a presumption that the use is hostile and the burden then shifts to the opponent to come forward with evidence that the use is permissive (Di Leo v. Pecksto Holding Corporation, 304 NY 505, 512). However, "if the first possession is by permission it is presumed to so continue until the contrary appears [citation omitted]. When possession is permissive in its inception, adverse possession will not arise until there is a distinct assertion of a right hostile to the owner and brought home to him" (Shandaken Refm. Church v. Leone, 87 AD2d 950, 950-51, 451 N.Y.S.2d 227, lv. denied 57 NY2d 602, 454 N.Y.S.2d 1027, 439 N.E.2d 1246).

In this case the first possession was permissive. Thus, the onus is on the plaintiff to demonstrate that he asserted a right hostile to the owner and made that assertion known to the owner. Exclusive possession, by itself, is insufficient. Plaintiff has failed to allege a single act that would put the property owner on notice that his continued possession was hostile. Plaintiff cannot, therefore, succeed on his claim of adverse possession. Accordingly, the defendant's motion for summary judgment is granted and the complaint is dismissed.

This shall constitute the Decision and Order of the Court.

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J.S.C.