In this action seeking, inter alia, a declaratory judgment, plaintiffs Shun K. Fung & Oi-Yee Fung (collectively "Fung") move for summary judgment on their complaint and defendant Holy Trinity Ukrainian Authocefalic Orthodox Church ("Church") moves for summary judgment dismissing the complaint and for summary judgment on its counterclaim.

Fung acquired ownership of the property located at 129 Elizabeth Street by deed in 1987. The property is a paved lot with no dwelling or structure constructed thereon. The Church acquired ownership of the property located at 355 Broome Street by deed in 1958. There are a multi-level building and backyard at that location. The backyard is directly adjacent to Fung's property and the two properties share a north/south property boundary line. A fence sat between the two properties since at least 1958. The fence was not [*2]owned or erected by Fung.

In or about August 2005, Fung ordered a land survey to determine the property line and boundaries, because he was planning to begin construction on his property. A land survey performed by licensed land surveyor Christopher M. Buckley ("Buckley") indicated that the fence did not sit exactly along the lot line between the two properties. According to Buckley, the fence cut off a triangular 26 square foot strip of land at the rear of Fung's lot ("strip").

According to Fung, the Church began occupying the strip in or about July 2005 by placing various objects, including food carts, canvas, bicycles, wood plans and sheet metal on the property. In late 2005, Fung obtained approved building plans and was planning to begin construction of a building on the subject property. Fung was unable to commence construction as a result of the Church's presence on and refusal to vacate the strip.

As a result, Fung commenced this action in or about March 2008 seeking judgment (1) granting sole and exclusive possession of the strip to Fung; (2) enjoining and restraining the Church from possession of the strip and from claiming any further interest or claim to title adverse to Fung; (3) declaring that Fung is the sole and exclusive owner of the strip; and (4) directing the Church to immediately vacate possession and occupation of the strip.

The Church answered the complaint, denied all material allegations and interposed a counterclaim alleging that the strip has regularly and continually been in the Church's possession for approximately fifty years prior to the commencement of Fung's action and such possession has been open, notorious and under claim of right adverse to Fung's rights. The Church sought a declaration that it was vested with an absolute and unencumbered title in fee to the strip and entitled to continued possession.

Fung now moves for summary judgment on its complaint, arguing that pursuant to its deed for the subject property and Buckley's survey, it is entitled to sole and exclusive possession of the strip. In support of its motion, Shun K. Fung asserts in an affidavit that he did not observe any person from the Church use or occupy the strip in any meaningful manner from 1984-2005. He did not observe the Church assert any interest in the strip until approximately July 2005, when various items were stored in the area of the strip. Fung argues that the existence of the fence is not sufficient to prove an adverse interest.

The Church cross moves for summary judgment dismissing the complaint as time barred, and for summary judgment on its counterclaim. In support of its cross motion, the Church submits the affidavit of a member of its board member Leonid Pacholuk ("Pacholuk") who maintains that the Church owned and maintained the fence and rear yard of 355 Broome Street, including the subject strip, since its purchase in 1958.

The Church argues that Fung's claims are time barred pursuant to CPLR 212(a) because Shun K. Fung admitted that he first learned that the strip was located on the Church's side of the fence in 1984 when he purchased his property. In addition, in 1986 [*3]and 1987, Shun K. Fung commissioned surveys of the subject property which depicted that the strip was within the Church's fence, which enclosed its property. Therefore, because Fung took no action for over twenty years to recover the strip, the claims are time barred.

The Church also maintains that the subject fence constituted a "substantial inclosure" protecting the strip pursuant to the RPAPL, and the Church thus acquired title to the strip via adverse possession as early as 1968, ten years after it acquired ownership of the property. The Church explains that because its claim for adverse possession vested in 1968, the July 7, 2008 amendments to RPAPL Article 5, which deem fences to be permissive and non-adverse, do not apply.

In further support of its motion, the Church submits the examination before trial testimony of Reverend Todor Mazur ("Mazur"), who has been affiliated with the Church since 1995. He testified that two or three years after he joined the Church, he cleaned garbage from the area of the strip and maintained a vegetable garden in that area. He or his wife would clean the area once a week to once a month. He maintained that garden for a year or two. He also made some repairs to the subject fence. Todor further explained that the area of the strip is now used for pushcart handlers to store their pushcarts and has been used as such for the past 12 or 13 years. The pushcart handlers donate money to the Church for the use of that storage space.

Discussion

A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980).

To prevail on an adverse possession claim, five elements must be established: 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. United Pickle Prods. Corp. v. Prayer Temple Community Church, 43 AD3d 307, 308 (1st Dept. 2007).

The Church first argues that Fung's claims are time barred pursuant to CPLR 212(a). CPLR 212(a) provides that an action to recover real property or its possession cannot be commenced unless the plaintiff was seized or possessed of the premises within ten years before the commencement of the action. The Church maintains that Fung was aware that the Church possessed the strip when Fung purchased his property in 1984 because the fence was in place at that time. Further, the 1986 and 1987 surveys showed that the strip was enclosed by the fence. Fung argues that it was aware of the location of the fence when it purchased the property, but it did not observe any person or parties use, maintain or cultivate the strip until July 2005, and therefore, the claim could not have accrued prior to that time. The Church further alleges that its claim of adverse possession [*4]of the strip vested in 1968 — ten years after it acquired title to its property — and therefore, the original RPAPL adverse possession statutes, which still allowed a fence to constitute a "substantial inclosure," apply.

It is undisputed that the subject fence was present when the Church acquired possession of its property in 1958, that the fence cuts off a strip of land at the rear of Fung's lot, and that Fung knew that the fence cut off his strip of land in or about 1984. However, whether the claim is time barred and whether the Church obtained possession of the strip by adverse possession is for a jury to resolve. Triable issues of fact have been presented regarding the nature and use of the strip. While the Church submits evidence that the strip has been used and possessed openly and notoriously since 1958, Fung submits evidence that the strip was vacant, unused and not maintained until July 2005.

In accordance with the foregoing, it is hereby

ORDERED that plaintiffs Shun K. Fung & Oi-Yee Fung's motion for summary judgment on their complaint is denied; and it is further

ORDERED that defendant Holy Trinity Ukrainian Authocefalic Orthodox Church's motion for summary judgment dismissing the complaint and for summary judgment on its counterclaim is denied.

This constitutes the decision and order of the Court.

Dated:New York, New York

May 12, 2011

E N T E R:

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Saliann Scarpulla, J.S.C.