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Upon the foregoing papers, it is ordered that: This action involves a dispute between adjoining property owners over the property line which divides their two lots. The plaintiffs own a real estate lot located at 7 West 84th Street in Manhattan. The defendants own the lot directly west, at 9 West 84th Street. Both properties are located on the north side of 84th Street. A party wall between the two properties runs north from 84th Street for about 70 feet. The wall is approximately 12 inches wide. A fence separating the two backyards runs to the north of the wall and stops at the northern terminus of both properties.

The plaintiffs purchased their property in 1999 and the defendants purchased their property in 2006. After their purchase, the defendants sought and obtained the plaintiffs' permission to remove the fence in order to undertake certain renovations, with the understanding that defendants would reconnect the fence when the work was finished. However, before reconnecting the fence, the defendants retained a licensed surveyor, Saeid Jalilvand, to survey the property. Mr. Jalilvand determined that the fence, as previously located, had encroached on the defendants' property by approximately 5 inches. According to Mr. Jalilvand, whoever had installed the fence had located it so that it would run immediately north of the party wall at the approximate midpoint of the 12 inch wide wall. However, Mr. Jalilvand found that, in fact, the property line does not run through the middle of the party wall but, rather, at the wall's easterly boundary. Thus, in reconnecting the fence, the defendants could have moved it as much as five inches east of where it had been previously located. However, they chose to move it only 3.75 inches east, leaving the fence approximately 1.25 inches west of the claimed property line.

In this action, the plaintiffs allege that the fence is now encroaching on their property or, if it is not, that they are entitled to an order granting them title to the disputed portion through adverse possession. In their answer, the defendants have asserted counterclaims alleging that a fence post, a metal balcony, second story fencing and gutters maintained by the plaintiffs encroach on the defendants' property.

The defendants have now moved for summary dismissing the complaint. In support of the motion, they have submitted an affidavit from Mr. Jalilvand, who repeats the conclusions he drew from his inspection and survey of the property, as well as his review of the deeds to the two lots. Notably, the plaintiffs have failed to submit an expert affidavit in opposition and do not otherwise dispute Mr. Jalilvand's conclusions. Rather, they argue that there is a question of fact [*2]as to whether they have acquired title to the disputed portion of the property through adverse possession.

To establish a claim of adverse possession, a party must prove, by clear and convincing evidence, five elements: possession must be hostile and under claim of right, it must be actual, it must be open and notorious, it must be exclusive and it must be continuous for a period of at least ten years. See Walling v. Przybylo, 7 NY3d 228, 232 (2006); Nazarian v. Pascale, 225 AD2d 381, 382 (1st Dept 1996). In addition, RPAPL §543, which was enacted in 2008, provides that the existence of de minimis 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. See also Sawyer v. Prusky, 71 AD3d 1325 (3rd Dept 2010).

Here, as already noted, the fence which defendants installed is located 3.75 inches east of the fence which they removed. Thus, the plaintiffs in this action seek to acquire through adverse possession property which is less than 4 inches wide. This encroachment is de minimis. See Matter of Li Cai v. Uddin, 58 AD3d 746, 747 (2nd Dept 2009)(two inch fence encroachment); Hoffmann Investors Corp. v. Yuval, 33 AD3d 511, 512 (1st Dept 2006)(1 to 3 inch encroachment). As such, the plaintiffs' claim for adverse possession must fail as a matter of law. The defendants' motion for summary judgment must therefore be granted.

Finally, having found that the dispute between the parties involves an encroachment which is de minimis, the court is persuaded that it is entirely appropriate, under the circumstances, to dismiss the defendants' counterclaims since these claims entail the same degree of encroachment. Indeed, the court notes that in their motion papers seeking dismissal of the plaintiffs' claims, the defendants have vigorously argued, and thus conceded, that the encroachment is de minimis. The defendants' counterclaims must therefore also be dismissed. See CPLR 3212(b).

Accordingly, the defendants' motion for summary judgment is granted and the complaint is hereby dismissed. In addition, the defendants' counterclaims are hereby dismissed.

The Clerk Shall Enter Judgment Herein.