The following papers numbered 1 to 16 read on this motion by plaintiffs Masel Powell and Doreen Powell ("plaintiffs") for summary judgment, to dismiss defendant Anthony Cox's ("defendant") claims and affirmative defenses, and for punitive damages and attorney fees; and on the cross motion by defendant for summary judgment dismissing the complaint, a declaration that defendant has good title to the subject property, and to enjoin plaintiffs from trespassing on defendant's property.

Papers Numbered

Notice of Motion - Affidavits - Exhibits .............................................1-5

Notice of Cross Motion - Affidavits - Exhibits ...................................6-10

Reply Affidavits ...................................................................................11-16

This is an action to recover for trespass and damages that plaintiffs have allegedly sustained as a result of defendant's use of their property, located at 120-15 198 Street, in the County of Queens. Defendant has counterclaimed for trespass and damages as a result of plaintiffs' alleged use of his property located at 120-21 198 Street. The properties are situated adjacent to each other. Plaintiffs acquired their property in 1986, and defendant acquired his property in 1987. Plaintiffs have alleged that defendant has constructed a walkway and pillar across the boundary line between the properties and defendant has alleged that plaintiffs have constructed a garage across the boundary line and that they damaged an artificial pond and waterfall in the process of that construction. This Court's prior decision, concerning a discovery dispute, is reported at 26 Misc 3d 1240(A), 2010 WL 1077865, 2010 NY Slip Op 50496(U) [Sup Ct Queens County 2010].

Plaintiffs have moved for summary judgment and have argued that they own the property [*2]at issue, and the defendant has cross-moved for summary judgment on the same issue and argued that he acquired the property by adverse possession. Each party has the burden, on its respective motion or cross motion, to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see, Smalls v AJI Indus., Inc., 10 NY3d 733, 735 [2008]).

As the Appellate Division, Second Judicial department has recently emphasized: "In order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right; (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period" (Hogan v Kelly, 86 AD3d 590, ___ [2nd Dept. 2011]; see, Walling v Przybylo, 7 NY3d 228, 232 [2006]; Asher v Borenstein, 76 AD3d 984, 986 [2nd Dept. 2010]). "The adverse possessor acquires title to the occupied real property upon the expiration of the 10-year statutory period" (Hartman v Goldman, 84 AD3d 734, 736 [2nd Dept. 2011]; CPLR 212[a]).

In addition to demonstrating the four elements of an adverse possession claim, "[o]ne who claims title to land not founded upon a written instrument by adverse possession must demonstrate (1) that the land has been usually cultivated or improved, or (2) protected by a substantial enclosure" (Rowland v Crystal Bay Constr., 301 AD2d 585, 586 [2nd Dept. 2003]; RPAPL 522).

In 2008, the Legislature amended RPAPL article 5 to apply to claims filed on or after the effective date of the amendments, which took effect on July 7, 2008. The amendments also added section 543, providing that "the existence of de minimus [sic] 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" and that "the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse."

However, the 2008 "amendments cannot be retroactively applied to deprive a claimant of a property right which vested prior to their enactment" (Hogan v Kelly, 86 AD3d 590, supra; see, Wolfsohn v Seabreeze Estate LLC, 28 Misc 3d 1239(A), 2010 WL 3700276, 2010 NY Slip Op 51639[U] [Sup Ct Queens County 2010] [McDonald, J.]). The defendant has claimed that his adverse possession of the disputed property along the boundary line began in 1988 and ripened in 1998, well before the amendments to the RPAPL. Therefore, even though the instant action was commenced after the effective date of the 2008 amendments, the pre-amendment law in effect at the time that defendant's adverse possession claim would have ripened - - should he be successful in proving his claim - - is applicable in the instant matter (see, Wolfsohn v Seabreeze Estate LLC, _28 Misc 3d 1239(A), 2010 WL 3700276, 2010 NY Slip Op 51639[U], supra).

Upon the foregoing papers, in support of their motion and cross motion, the parties have [*3]relied upon, among other things, copies of surveys of the plaintiffs' property, defendant's deposition testimony, and copies of deeds to both properties. Defendant testified that when he purchased his property in 1987, there was an existing chain-link fence surrounded by a hedge which constituted the boundary line between his and plaintiffs' property, and an existing walkway which ran parallel to the boundary line. He further testified that he maintained the hedge regularly, beginning in 1988, and that, in 2003, he removed the existing walkway and replaced it with a new cement walkway and a pillar that he constructed solely on his side of the chain-link fence and hedge. The defendant testified that, sometime after 2005, the chain-link fence and hedge were removed and that he and plaintiffs shared the costs of the removal equally. He also testified that plaintiffs constructed a new garage on their adjacent property that has trespassed three feet across the boundary line and onto his property and that they caused damage to his artificial pond and waterfall.

Although the defendant's cultivation and improvement of the property may, under certain circumstances, be sufficient to demonstrate adverse possession, a decision by this Court would require a determination of the entire property. Based upon the record, since issues of fact remain, at least, as to where the boundary line lies at the rear of both properties, what occurred with regard to the alleged location of the plaintiff's new garage construction onto defendant's property, and the destruction of defendant's pond and waterfall, summary relief is precluded on both the motion and cross motion.

Accordingly, the motion and cross motion are both denied in all respects.

Dated: August 26, 2011

J.S.C.