[*1]
Kennedy v Faith of God's Word Ministry
2008 NY Slip Op 51495(U) [20 Misc 3d 1121(A)]
Decided on May 13, 2008
Supreme Court, Suffolk County
Sgroi, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 13, 2008
Supreme Court, Suffolk County


Matthew Kennedy and Robin Kennedy, Plaintiffs,

against

Faith of God's Word Ministry, Defendant.




11116-2006



GERMANO & CAHILL, PC

Attorney for Plaintiff

4250 Veterans Memorial Highway

Holbrook, New York 11741

JEFFREY STERN, ESQ.

Attorney for Defendant

128 Front Street

Mineola, New York 11501

Sandra L. Sgroi, J.



ORDERED that the motion of the Plaintiffs, Matthew Kennedy and Robin Kennedy, for judgment in this action is granted without opposition; and it is further

ORDERED that the Plaintiffs are directed to prepare and submit a judgment to this Court.

In this action commenced pursuant to RPAPL Article 5 the Plaintiffs seek title to real property by adverse possession. The property involved in this litigation is a small strip of land, comprised of 1,423 square feet, located in the back yard of the Plaintiffs, which the Plaintiffs have allegedly possessed, used and occupied since they purchased their home over ten years ago(see Plaintiffs' Exhibits "B", "C", and "I". When this action was commenced, the Plaintiffs served process on the named Defendant Faith of God's Word Ministry. The property of this Defendant abuts upon the back of the Plaintiffs' real property. Faith of God's Word Ministry has been served with this motion and has not objected to the relief requested by the Plaintiffs in this action at any stage of the proceedings.

The Plaintiffs purchased their home on September 13, 1993 from a builder/developer. The gore that is the subject of this litigation is located in their back yard. It is a roughly rectangular plot adjacent to the northerly border of the Plaintiffs' deeded lot and measures 9.27 feet by 126.37 feet by 13.25 feet by 126.30 feet. This rectangular gore lies within an enclosure bordered by fences and shrubs on the north, east and west sides and the Plaintiffs house to the south. These fences were present when the Plaintiffs took possession of their property in 1993.

The Plaintiffs allege that they have regularly maintained this property since 1993 and it has been incorporated into their back yard and used by them to the exclusion of other persons. The Plaintiffs erected a shed in 1999 that is located on this gore and improved their land with a swimming pool in 2004 that borders on the gore.

The Plaintiffs became aware that the gore was not part of the land that was deeded to them when they applied to the Town of Brookhaven for a certificate of occupancy for their pool in 2004. Although the pool is not located in the gore that the Plaintiffs seek title to at this time, the Plaintiffs do not have ownership of the requisite setback needed for the pool under the zoning regulations of Brookhaven without the gore.

A recent survey performed by the firm of Hawkins Webb Jaeger concluded that the Plaintiffs property was not accurately described in the deed that was given to them when they purchased their home, and upon review of the other deeds in the area, Matthew Crane, a professional land surveyor, states that it is reasonable to assume that none of the owners of the contiguous lots have a claim to the gore of property immediately behind the Plaintiff's land, as properly described. Hawkins Webb Jaeger prepared the subdivision map that was filed with the Suffolk [*2]County Clerk in 1989.[FN1]

In his affidavit, Michael Crane states that the gore is not described in the latest recorded deeds or surveys of the lands of either the Plaintiff, the Defendant Faith of God's Word Ministry or the owners of other lands in the vicinity. He states that "[i]t is part of a gap and overlap,' a condition arising from surveyed parcels of land which, although meant to be contiguous, were surveyed at varying points in time from different sets of monuments. The ownership of this land was once held as part of a much larger parcel by the persons who filed a document known as the "6th Map of Agricultural City" with the Clerk of the County of Suffolk in 1896, but the point at which the gap and overlap' was created in subsequent subdivisions and real property transactions is not readily discoverable absent a comprehensive examination of 100 years of recorded documents and other evidence." Crane states further:

I believe that it is reasonable to conclude that a) none of the current property owners in the area hold record title to the lands within the divergent property boundaries; and b) any person, other than the Kennedys, who may have a claim of ownership to the property at issue in this action is unknown, and further, is not susceptible to discovery through the exercise of reasonable diligence.


Portion Road was widened over the years, thus further complicating any tracing of the deeds and various chains of title to determine when the gore actually came into existence and Marijude Messina opines that "it would be extremely difficult, expensive and time consuming to examine all of the chains of title for portions of lot 204 from 1944 to date given the condition of the records in the Suffolk County Clerk's office and the uncertain location of monuments in the area."

After reviewing the application of the Plaintiffs, this Court ordered personal service to all property owners whose parcels are either contiguous to the property owned by the Plaintiffs or to the land that the Plaintiffs seek title to by adverse possession, together with service by publication pursuant to CPLR 316. The Plaintiffs served all such owners of land. After service was completed on the additional parties that the Court directed the Plaintiffs to add and their time to answer had passed, the Plaintiffs moved for judgment.

With regard to the merits of this matter, a party seeking to obtain title to real property by adverse possession not based upon a written instrument must establish that the property was either "usually cultivated or improved" (RPAPL 522(1) ) or "protected by a substantial inclosure" (RPAPL 522(2); see also, Monthie v. Boyle Road Associates, L.L.C., 281 AD2d 15, 724 NYS2d 178). In addition, the Plaintiffs must demonstrate, by clear and convincing evidence, the [*3]common-law requirements of adverse possession and they must show that the possession was hostile and under claim of right, actual, open and notorious, exclusive, and continuous for the statutory period of 10 years ( see, Walling v. Przybylo, 7 NY3d 228, 232, 818 NYS2d 816, 851 NE2d 1167; Ray v. Beacon Hudson Mtn. Corp., 88 NY2d 154, 159, 643 NYS2d 939, 666 NE2d 532; Hall v. Sinclaire, 35 AD3d 660, 826 NYS2d 706). The un-refuted affidavits and other documents, including surveys, submitted by the Plaintiffs establish that the Plaintiffs have used the land under claim of right for over ten years (see, Lemquist v. Araujo, —- NYS2d ——, 2008 WL 1014930, 2008 NY Slip Op. 03177, N.Y.A.D. 2 Dept. Apr 08, 2008).

Therefore the motion of the Plaintiffs for judgment is granted.

Dated:May 13, 2008________________________SANDRA L. SGROI, J. S. C.
Footnotes


Footnote 1:The Court notes that these property owners may have their own claim on property located immediately behind their houses because a small gore runs behind all the houses located on the north side of Deera Lane.