The following papers numbered 1 to 25 were read on this motion by defendants, EDGEMERE BEACH DEVELOPMENT LLC and GOTHAM BANK OF NEW YORK, for an order pursuant to CPLR 3212(b) granting summary judgment in favor of defendants and dismissing the plaintiff's complaint; and the cross-motion of the plaintiff for an order pursuant to CPLR 3212 granting summary judgment to the plaintiff declaring his unencumbered fee title to certain real property by reason of adverse possesion:

Papers Numbered

Defendants' Notice of Motion-Affidavits-Memo of Law........1 - 8

Plaintiff's Notice of Cross-Motion-Memo of Law.............9 - 14

Defendants' Affirmation in Opposition to Cross-Motion.....15 - 20 [*2]

Plaintiff's Reply Memorandum..............................21 - 25

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Plaintiff, Jonathan Wolfsohn, commenced this action by summons and complaint dated September 10, 2008 pursuant to Article 15 of the New York State Real Property Actions and Proceedings Law, seeking to declare and quiet the plaintiff's right and title in fee by adverse possession to certain property together with a garage and driveway area and the area of an encroaching deck and stucco addition claimed by deed by defendant Edgemere. Plaintiff seeks an order permanently enjoining defendant from interfering with the plaintiff's title, use, and occupation of the said real property or from removing a fence installed by the plaintiff to mark the separation of the plaintiff's property from the defendants' property.

The procedural background of this case has been summarized in two prior decisions rendered by this court, one dated December 15, 2009 regarding plaintiff's motion for partial summary judgment on its third cause of action and one dated September 15, 2010, on a motion to reargue that decision.

In his verified complaint, Mr. Wolfsohn alleges that in 1990 he purchased real property located at 145 Beach 27th Street, Far Rockaway, New York, identified as Tax block 15819, Lot 66. The property is located south of Seagirt Avenue, north of the beach, west of Beach 27th Street and east of Marvin Street. He also purchased the real property known as Tax Lot 125 which is located immediately west of and adjacent to Lot 66. In 2002 defendant Seabreeze purchased Tax Lots 67 and 123 and other undeveloped property to the South. The verified complaint seeks a judgment declaring plaintiff's title by adverse possession to a portion of the Seabreeze property including a garage and driveway area, an encroaching deck and stucco addition to two buildings located to the South of his property.

On October 8, 2008, the plaintiff served a supplemental summons and amended verified complaint naming Edgemere Beach Development LLC and Gotham Bank of New York as additional party-defendants. Plaintiff alleged that Seabreeze is the predecessor in title to the subject property and that it conveyed its interest to Edgemere on February 6, 2007. Gotham Bank holds the mortgage on the defendant's property. In addition to its claims for adverse possession and injunctive relief, the plaintiff's third cause of action seeks a declaration to the effect that the 2008 amendments to the RPAPL which pertain to actions for adverse possession are not applicable to this action. For procedural [*3]reasons the first motion for summary judgment was denied with leave to renew.

Plaintiff moved to renew the prior decision in June 2010. In its decision dated September 15, 2010, this Court stated that the property purchased by Mr. Wolfsohn, Tax Block 15819, Lot 66, is depicted on the tax map as 25 feet wide, (north to south) and 85 feet in depth (east to west). At the time plaintiff purchased this property it was improved by a two-story frame residential dwelling that faced directly onto Beach 27th Street, with a small one story attached stucco addition to the rear southwest corner, and a smaller detached one story frame building with a side deck located to the west. Both the side deck and stucco addition extend beyond the southern boundary of Lot 66 and encroaches onto the parcel to the south. Plaintiff further alleges that at the time he purchased the real property in 1990, immediately south of Lots 66 and 125 there was (a)a wood shed/garage, 13.4 feet wide and 11.8.5 feet long; (b)a paved driveway area also 13.4 feet wide running to the east of Beach 27th Street; and( c) a fence running from the southeastern corner of the shed/garage to Beach 27th Street along the southern edge of the paved driveway. Mr. Wolfsohn alleges that the occupants of these buildings parked their vehicles in the garage and on the driveway area and that at the time of said purchase in 1990, "the extent of his land, and the exact southern boundary were, as a practical matter, indeterminate."

Mr. Wolfsohn alleges that he had his property surveyed in 1990 and again in 1996. He also states that another survey was performed in 1995. He alleges that long before he purchased his property, the real property to the south of Lots 66 and 125, which he identifies as Tax Lots 66 and 123, were vacant and covered with weeds, grass and bushes, except for the garage and driveway area.

In 1996, Mr. Wolfsohn purchased the parcel of real property known as Tax Lot 125, which is immediately to the west of Lot 66. He alleges that in 1996 he had the garage/shed and original fence removed from the property. He further states that he asserted and claimed that the southern boundary of his property is located some 40 feet farther to the south of Lots 66 and 125, and he installed a wire fence across the open and vacant land running east to west from Beach 27th Street to the east of Marvin Street on the west. The area encompassed within this fence includes the garage and driveway area, as well as the deck and stucco addition. Plaintiff alleges that for more than ten years he has maintained this fence, cut and regularly mowed the weeds and bushes, deposited fill and graded the area, and parked vehicles [*4]and stored equipment on the said property and permitted his tenants to do the same. Therefore, Mr. Wolfsohn argues that title to the property by adverse possession vested in 2006, ten years after he erected the fence and prior to the July 2008 amendments to RPAPL Article 5 concerning adverse possession.

In 2002, Seabreeze purchased the unimproved real property located at Block 15819, Tax Lots 67 and 127 from Progressive Equities Corp. In 2004, Seabreeze sought to remove the metal fence which ran from Beach 27th Street to Marvin Street, and was some 32 feet 10 inches south of the northern boundary line of Lots 66 and 125. Counsel for Seabreeze, in a letter dated July 16, 2004, demanded that Mr. Wolfsohn remove this fence which was encroaching approximately 32 feet onto Seabreeze's property. Seabreeze claimed that a survey prepared on February 9, 1990, showed a wood shed and metal fence encroaching 13.4 feet onto Seabreeze's property; that the October 26, 1995 survey also showed these encroachments, but that the August 24, 2001 survey showed that the wood shed had been entirely removed and that there was an unenclosed and incomplete wire fence extending approximately 30 feet into Seabreeze's property, a new wood deck and concrete walkway encroaching approximately 2.4 feet and 1.5 feet, respectively, onto Seabreeze's property. Counsel provided copies of these surveys to Mr. Wolfsohn and asserted that Mr. Wolfsohn had no basis to claim any right, title or interest by adverse possession or otherwise to approximately 32 feet area which his new fence currently occupies on Seabreeze's property; and that he had no basis in fact or law to claim any right to the 13.4 foot area formerly occupied by a shed and metal fence. Counsel demanded that Mr. Wolfsohn remove the fence by July 21, 2004, and stated that in the event it was not removed, Seabreeze would remove it.

Plaintiff alleges that in 2006, Edgemere purchased Lots 67 and 127 and "other properties south" of these lots, from Seabreeze. He further alleges that commencing in 2006 Edgemere attempted to remove plaintiff's fence, which had been in place since 1996, and that each time the fence was removed it had been replaced. He alleges that although Edgemere protested plaintiff's hostile claim to title of all land located north of the fence, it did not commence an action to assert superior title or to eject plaintiff from the subject real property.

Plaintiff, in his first cause of action pursuant to Article 15 of the Real Property and Proceedings Law (RPAPL), seeks a declaration to the effect that he is the owner, by adverse possession, of the disputed real property. The second cause of action seeks a permanent injunction with respect to plaintiff's [*5]use and occupancy of the subject property, and the garage and driveway, area, including the deck, the stucco addition, and the fence. The third cause of action seeks to declare that the 2008 amendments to sections 501, 511, 521, 522, 531 and 541 of the RPAPL, as interpreted to uphold its constitutionality do not apply to plaintiff's claim as it fully vested prior to July 2008, or in the alternative that the amendments are unconstitutional and void, as to plaintiff, as his title over the subject real property by adverse possession vested prior to July 2008.

Defendants, in their verified answer to the amended complaint, interposed the following affirmative defenses: failure to state a cause of action; unclean hands; waiver, laches and estoppel; statute of limitations; statute of fraud; failure to mitigate damages; no acts of wrongdoing are alleged against the defendants; plaintiff's action are barred in whole or part by plaintiff's or his predecessor in title's negligent acts or omissions; that the July 2008 amendments to RPAPL § 501 et. seq. are applicable to this action as the complaint was filed after July 8, 2006; and for comparative negligence.

By decision dated September 15, 2010, this court granted plaintiff's motion for partial summary judgment on the third cause of action holding that this action is to be governed by the version of RPAPL Article 5 in effect prior to July 7, 2008, and prior applicable case law (see Franz v Olin, 73 AD3d 44 [4th Dept. 2010] Barra v Norfolk S. Ry Co., 75 AD3d 821 [3d Dept. 2010]. The branch of plaintiff's motion which sought to strike Edgemere and Gotham's affirmative defenses was granted, as these defenses were found to be either lacking in merit, or irrelevant to this action (see Wolfsohn v Seabreeze Estate LLC, 28 Misc 3d 1239(A)[Sup. Ct. Queens County 2010]). The court records indicate that the defendants filed a notice of appeal on November 3, 2010 but there is no indication as to whether the appeal was perfected.

Defendants now move for an order pursuant to CPLR 3212 dismissing the plaintiff's complaint seeking adverse possession of the above described property, on the ground that plaintiff cannot prove that a fence encroaching 29-34 feet from the northern boundary of Edgemere's property line from west to east existed as a substantial enclosure for a ten year statutory period. Counsel asserts that surveys taken within the statutory period commencing when the fence was erected in 1996 show that the fence did not fully enclose said area. In addition, counsel asserts that the proof demonstrates that the defendant's predecessor, Seabreeze, knocked the entire fence down during the statutory period on two occasions and were prevented by the [*6]police from knocking it down a third time. In addition, counsel asserts that there is no evidence that the shed and driveway area were adversely possessed for a ten year period as they were taken down in 1996, six years after the purchase of the property by the plaintiff.

In support of its motion, the defendants submit documents indicating that the plaintiff purchased block 15819, Lot 66 known as 145 beach 27th Street Far Rockaway Queens from Seol Realty on May 29, 1990. Counsel also submits a survey prepared by Albert A. Bianco dated February 2, 1990 showing that shed and driveway encroached on Edgemere's property to the south by 14 feet as well as a deck and stucco building crossing the southern boundary by less than a foot. Defendant also submits an affidavit from Mr. Seltzer, a principal of Seol Realty Ltd, dated January 31, 1990, stating that "in approximately 1979 the undersigned erected a shed on the property which shed may encroach upon abutting property. No objection to this shed has been lodged from 1979 through the date of this affidavit." Defendant claims, however, that the deed from Seol contains only the metes and bounds description of Lot 66 without including any additional property upon which the shed and driveway were built. Defendant claims that in 1996, six years after he purchased Lot 66, the plaintiff removed the shed and driveway area. However, the complaint states that at the same time in 1996 the plaintiff put up a wire fence running 40 feet south of his boundary line and east and west across neighboring property lots 125 and 67 now owned by Edgemere. However, defendant asserts that there is no documentary evidence to support the continuous existence of that fence for a ten year period beginning in 1996. Counsel states that Seabreeze purchased lots 123 and 67 consisting of vacant land in 2002. Defendants claims that two surveys prepared on August 21, 2001 and June 30 2002 show a wire fence that continues only halfway across Lot 67 from west to east about 40 feet south from the plaintiff's propertynot enclosing any specific area.

Defendants assert that it was not until 2004 that the fence was installed across the entirety of lots 123 and 67. The deposition of a maintenance worker hired to mow the grass on Edgemere's premises indicates that he notified Martin Schaeffer of Seabreeze of the fence in 2004. Thereafter, defendant hired an attorney, Simon Rothkrug, Esq., who sent plaintiff a letter demanding that plaintiff remove the fence as it was encroaching on defendants' property. Schaeffer testified at an examination before trial that when the plaintiff did not remove the fence, he had he fence removed by maintenance workers. Mr. Wolfsohn reinstalled the fence and Mr. Schaeffer had it taken down again. The third time Mr. Schaeffer tried to have the fence removed the [*7]police were called and told the parties to settle their differences in court. Defendant also asserts that Wolfsohn does not have a viable claim for adverse possession because he gave mortgages on the property which did not contains metes and bounds description of the disputed property nor did he ever pay real estate taxes on the disputed section.

In support of the motion defendant submits an affidavit of Martin Schaeffer, the owner of Edgemere Beach Development LLC, dated April 16, 2013, stating that plaintiff cannot make claim to Edgemere property because the plaintiff never enclosed the area he is claiming he now owns by adverse possession for the statutory ten year period which he alleges commenced in 1996. Schaeffer states that the surveys do not support the claim and moreover, he attempted to oust the plaintiff from possession by knocking down the fence on two occasions in 2004 prior to the ten year period ending in 2006. Further, Mr. Schaeffer claims that former shed and driveway area 14 feet from the property was admittedly removed in 1996.

Mr. Schaeffer states that when Seabreeze purchased its property in 2002, a survey prepared at that time shows only a portion of a wire fence which is not enclosing anything. A 2001 survey also shows only a portion of a wire fence. However, in 2004, when Schaeffer was alerted to the fact that the fence was now running the entire width of his property, he had it knocked down and notified the plaintiff by letter that he had no right to claim an interest in the fenced in area. Defendants argue that the fence encroaching 29-34 feet from the northern boundary of Edgemere's property did not exist as a substantial enclosure for a ten year period, since the surveys indicate that the fence did not enclose any area whatsoever. Therefore, defendants claim that the plaintiff cannot show that he adversely possessed the 32 feet of property from 1996 to 2006. Defendants state that in 1990 the survey prepared by Bianco showed the encroaching shed and driveway which encroached 13.4 feet. Defendants claim however that the evidence shows that in 1996 plaintiff removed the shed and driveway, six years after he purchased the property, and put up a wire fence. Therefore defendants argue that plaintiff cannot demonstrate that he adversely posed the 14 feet area that previously had a driveway, shed and garage since 1990 as the shed was admittedly taken down in 1996.

Citing Air Stream Corp. v. 3300 Lawson Corp., 99 AD3d 822[2d Dept. 2012] defendants argue that "to establish a claim of adverse possession, the occupation of the property must be (1) [*8]hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years). The character of the possession must be such that it would give the owner a cause of action in ejectment against the occupier. In addition, where the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was 'usually cultivated or improved' or protected by a substantial inclosure' (RPAPL former 522). Because the acquisition of title by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence"

Defendants assert that plaintiff cannot establish the elements of adverse possession by clear and convincing evidence because his only support is a 2008 survey showing a fence across 29-34 feet of Edgemere's property. However, defendants contend that the two prior surveys, prepared during the vesting period, which show only a partial fence which does not enclose any area, refutes the claim of continuous enclosure of the property (citing Giannone v Trotwood Corp., 266 AD 430 [2d Dept. 1999][plaintiffs' unsupported claim that the disputed area was fenced in some fashion is insufficient to establish adverse possession by a substantial inclosure]).

Further, defendants claim that Mr. Schaeffer broke the disputed period by asserting his claim to the property by letter and by actually removing the fence in 2004(citing Ray v Beacon Hudson Mt. Corp., 88 NY2d 154 [the element of continuity will be defeated where the adverse possessor interrupts the period of possession by abandoning the premises, where an intruder's presence renders the possession nonexclusive, or where the record owner acts to eject the adverse possessor]). In addition, counsel argues that plaintiff failed to provide sufficient evidence regarding the continuous nature of cultivation, improvement and maintenance of the disputed property for a ten year period.

With respect to the claim of adverse possession of 13 feet to the south for the shed and driveway area shown on the 1990 survey, the defendants assert that the claim must be dismissed because the plaintiff purchased the property in 1990 and removed the shed in 1996 which does not establish the ten year period. Although the prior owner stated in a note that the shed was on the property since 1979, defendants claim that the plaintiff cannot establish tacking because there is no proof that the prior owner claimed the shed area by adverse possession or under a claim of right. Counsel claims that the shed was not even [*9]provided for in the metes and bound description on the deed provided by Seol (citing Wathley v Rosen, 19 AD2d 755 [2d Dept. 1963][for "tacking" the court must find that the evidence establishes either: (1) a continuous, adverse use of the property under claim of right, by plaintiff's predecessors in title; or (2) any intent by such predecessors in title to convey any rights in the roadway to plaintiff]). Lastly, defendant claim that the minor encroachment of the wood deck and stucco building is de minimus and cannot be claimed by tacking.

Plaintiff, Jonathan Wolfsohn, opposes the motion and cross-moves for summary judgment awarding the disputed property to the plaintiff by adverse possession. In his affidavit dated July 24, 2013, plaintiff states that he is seeking title to the subject property, the garage and driveway area and an encroaching deck and stucco addition under a claim, not written, and permanently enjoining the defendant from interfering with his use and occupation of the subject property and from removing the fence which he alleges he installed in 1995.

Plaintiff had a survey prepared in 2008 by Kulhanek & Plan which he states shows the extent of the property he claims by adverse possession. He states, "I claim title by adverse possession to Lot 123 (more or less) and the northern most part of Tax Lot 67 - as set forth in the 2008 survey. He states that the survey shows the fence and the area exclusively maintained, improved and regularly cultivated by him and his tenants and enclosed by a substantial fence since 1995. He claims adverse possession of the property stating that for over 23 years since 1990 he maintained, improved and exclusively occupied the property, cultivated filed and graded the property. His tenants and guests parked their vehicles on the property and planted and maintained gardens in the area. He states that since 1995 he enclosed the property with a substantial fence and kept others off the land. He states that chain link fence was installed in October 1995. He states that by improving, filling, grading, cultivating, and maintaining the area north of the fence the visual difference in the two areas of land is self-evident as noted in aerial photographs attached. Plaintiff also claims that despite the fact that the defendants removed the fence in 2004 and sent a letter from counsel, defendant took no action to eject him and his tenants from the open and obvious occupation of the property even though the statute on adverse possession ran in 2005.

Wolfsohn also states that when he purchased Lot 66 in 1990 from Seol realty it was improved with two structures a 2 story frame residential dwelling facing Beach 27th Street with a small [*10]1 story stucco addition to the rear southwest corner and a smaller detached one story frame building with a side deck located to the west of lot 125. He states that both the deck and stucco addition encroached on the southern boundary of lot 66. In addition, he states that there was a wood shed/garage 13.4 feet wide and 11.8 feet long and a driveway area of similar width running to the Beach 27th Street and paved with cement paving stones. He states that the shed and driveway area encroached on the defendant's property as well. He states that those living in or visiting the house on Lot 66 parked their automobiles in and on the garage and driveway area and in the area of vacant land some 32 feet deep to the south of his lot.

He states that Seltzer, the prior owner, had the grass cut in this area setting it apart from the remaining expanse which was marked by overgrown wild vegetation and sea grass. He states that Seltzer used the property to store collections of things that he bought at flea markets. He states that the Bianco survey of 1990 accurately depicts the encroachment of the wood deck, garage and shed which predated his purchase. He states that based upon a handshake with the prior owner Seltzer, he asumed that all of the area some 30 to thirty two feet south of Lot 66 openly used an maintained by Seltzer was part of the deal. He states that no one ever approached him or talked to him about encroaching on defendant's land until 2004. He states that even though the deed did not contain a description of the disputed property, he was under the impression, based upon Seltzer's affidavit, that he was buying more than tax Lot 66, property that included a wood shed and two car garage depicted on the 1990 survey. He states that from 1990 to the present he and his tenants exclusively used the garagre and driveway as their own, openly and nortoriously under a hostile claim of right. He states that prior to 1995, he caused the entire property to be improved with fill and graded the entire area.

Plaintiff also states that in 1995, in conjunction with filling and grading the property and having the garage and shed taken down, he installed a wire fence across the vacant land from Beach 27 to Marvin Street. He states that for 12 years prior to the commencement of the action he openly marked the boundary line of his claim by maintaining the fence which substantially enclosed the claimed property. He states that in 1995 he asked Bianco to survey the property but Bianco would not include the fence because it was not part of the record deeded title. Plaintiff claims that his claim by adverse possesion does not rely entirely on the fence which he admits was knocked down by defendant in 2004, but also on the clear and obvious, and undeniable improvement, cultivation and maintenance of the entire [*11]area of the subject property. He states that his improvement and maintenance of the property began in 1990 five years before the fence was installed. Citing Phillips v. Sollami, 220 AD2d 946 [3d Dept. 1995], he claims that the open and notorious cultivation and maintenance of the property accomplishes the same requisite notice with or without the fence and fully supports his claim of title. He asserts, therefore, that he has made out a prima facie case for a declaration of his vested fee title to the premises by adverse possession.

Plaintiff also submits an affidavit from one Les Paultre, who resides at 191 Beach 27th Street stating that for more than 20 years there has been a wire fence at a point 30 feet south of Mr. Wolfsohn's property running from street to street from Marvin Street to Beach 27th Street. He states that the fence on the Eric Plan survey dated May 2008 is a fair representation of where the fence has been for 20 years. He states that Mr. Wolfsohn, parked his cars, let his tenants and friends park their cars in the area between his house and the fence and also brought in dirt and graded the property had the grass and weeds cut and permitted his tenants to plant and maintain gardens in the area.

Ms. GoPaul also submits an affirmation stating that she has been a tenant in the house at 145 Beach 27th street since 2000. She states that since she moved in, and to the present, there has been a fence at a point 30 feet south of the house running from street to street.

Plaintiff also submits an affirmation from one Donald Sisun, stating that he owns several properties on Beach 27th Street. He states that Mr. Wolfsohn has openly maintained the vacant land south of his house to a distance of about 30 feet, keeping it weed free and dropping and grading dirt across the property. He states that in 1995 plaintiff installed a fence across the property from Beach 27th to Beach 28 enclosing the land he had open and noticeably cleared of weeds, graded and maintained. He and his tenant parked his cars there.

The affidavit of Kathy Montanino, an employee of Wolfsohn Financial Services, states that plaintiff put up a fence in 1995 after her ex-husband, Shawn Murphy, owner of M & M excavating dropped approximately 10 loads of topsoil and spread the dirt south of Mr. Wolfsohn's house.

The affidavit of another witness, David Ramsahai, states that he observed the shed and garage and driveway and also attests to the fact that plaintiff caused a fence to be erected in 1995. He states that plaintifff used the area between his [*12]house as a driveway and parking lot.

In his memorandum of law, plaintiff contends that he brings this action pursuant to Article 15 of the RPAPL to quiet and declare his title to the subject property by adverse possession no later than October 2005. Plaintiff claims that he has continuously and exclusively possessed and occupied, improved and regularly cultivated the subject property since 1990 and fenced it in since 1995 in an open and notorious manner hostile to the interests of the record title owner. In Walling v. Przybylo, 7 NY3d 228 [2006], the Court of Appeals held that in order to establish a claim of adverse possession, the following five elements must be proved: possession must be (1)hostile under a claim of right; (2)actual; (3)open and notorious; (4)exclusive; and (5)continuous for the requisite ten year period. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors" Although this case was superceded in 2008, by Real Property Actions and Proceedings Law, (RPAPL), §543(1), as stated above, this court held that the law as it existed prior to the enactment of RPAPL 543(1) is applicable to this case. In Hogan v. Kelly, 86 AD3d 590 [2d Dept, 2011] the Second Department held that the amendments cannot be retroactively applied to deprive a claimant of a property right which vested prior to their enactment

Plaintiff claims that defendants' motion should be denied because when Mr. Schaeffer first removed the fence in 2004, title to the property had already vested, having vested prior to July 9, 2008 when the action was commenced. Counsel claims that he has established, prima facie, that his use and occupation of the subject property was open, notorious, exclusive, and continuous for well over ten years (citing Merget v Westbury Props., LLC, 65 AD3d 1102 [2d Dept. 2009] [an inference of hostile possession or a claim of right will be drawn where the other elements of adverse possession are established, unless, prior to the vesting of title, the party in possession has admitted that title belongs to another]).



In response, the defendants claim that Edgemere broke the vesting period in 2004 by having an attorney demand that the fence be removed, by verbally speaking to the plaintiff and demanding he remove the fence, and by removing the fence by self-help on two occasions. Counsel also supplies an affidavit from Desmond Darmalengun, an employee of Mr Schaeffer, dated September 4, 2013, stating that he mowed the grass and pulled weeds across the entire lots 67 and 123 including to near the neighbors house to the north and north of any fence installed on the lots. Thus, [*13]counsel argues there was no exclusivity during this period. Defendant claims that the vesting period began in 1995 when the fence was first erected by the plaintiff. Further, defendant claims that the surveys they submitted do not show a substantial enclosure during the entire vesting period. Plaintiff claims that there is no requirement that an action for ejectment be commenced to break the vesting period.

Defendants also claims that with respect to plaintiff's claim of regular cultivation or improvement commencing with Wolfsohn's purchase in 1990, there is no evidence of consistent maintenance throughout the ten year period. Counsel claims that case law is well settled that more is needed than just grass and weed cutting to establish cultivation and improvement of this type of property. Counsel also claims that with respect to the shed and driveway area plaintiff cannot tack on Seltzer's period of ownership because the deed does not include the disputed area in the metes and bounds description Therefore, counsel argues summary judgment must be awarded to the defendant, as the plaintiff cannot establish continuous and exclusive use throught out the entire vesting period.

Defendants also claim there was no exclusive use because Wolfsohn testified at his deposition that other vehicles from the neighborhood, including sanitation trucks, used the driveway. With respect to maintenance, the plaintiff contends that the plaintiff failed to prove by clear and convincing evidence that the maintenance was consistent throughout the statutory period (citing Litwin v Town of Huntington, 208 AD2d 905 [2d Dept. 1994][although the plaintiffs claim, inter alia, that they planted nursery stock and cultivated and tilled the property, the aerial photographs and other materials submitted failed to substantiate the assertion that such activities were continuous, open and notorious for the requisite period necessary to establish adverse possession]).

Upon review and consideration of the defendants' motion to dismiss the plaintiff's complaint and the plaintiff's cross-motion for summary judgment on the issue of adverse possession, as well as the affirmations in opposition and reply affirmations thereto, this Court finds that the respective motions by defendant and cross-motion of the plaintiff for summary judgment are denied based upon questions of fact which have been raised by the evidence submitted by each party as to whether the nature and incidents of plaintiff's possession were sufficient to establish ownership by adverse possession(see Vollbrecht v Jacobson, 40 AD3d 1243 [3rd Dept. 2007] {summary judgment denied where issues [*14]of fact exist as to whether the nature of possession was sufficient to establish ownership).

A party seeking to obtain title by adverse possession on a claim not based upon a written instrument must produce evidence that the subject premises were either "usually cultivated or improved" or "protected by a substantial inclosure" (RPAPL 522 [1][2]). That party must also establish, by clear and convincing evidence, the common-law requirements of hostile possession, under a claim of right, which was actual, open and notorious, and exclusive, and continuous for the statutory period (see, Brand v Prince, 35 NY2d 634 [1974] BTJ Realty v Caradonna, 65 AD3d 657[2d Dept. 2009] Walsh v Ellis, 64 AD3d 702 [2d Dept. 2009] Manhattan School of Music v Solow, 175 AD2d 106). "Reduced to its essentials, this means nothing more than that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period" (Hall v Sinclaire, 35 AD3d 660 [2d Dept. 2006]). This court finds that the plaintiff's proof on the instant motion was insufficient to make a prima facie demonstration of this standard by clear and convincing evidence.

Here, there is no dispute that the plaintiff purchased the property in 1990 from Seol Realty. The description on the plaintiff's deed at that time did not contain a metes and bounds description of the disputed property. The deed only conveyed title to the area of what is shown on the tax map as Lot 66, running 25 feet wide, north to south and 85 feet in depth east to west. The plaintiff claims that he is entitled to an award of the disputed property through adverse possession is not based upon a written document, but rather, is based upon the plaintiff's contention that it was protected by a substantial enclosure and cultivated and improved by him for at least a ten year period beginning in 1990. However in 1996, prior to the expiration of the ten year term, plaintiff claims he demolished the shed and erected a fence running approximately 40 feet towards the south from Beach 27th Street on the east to Marvin Street on the West. In 2002, Seabreeze Estates, Edgemere's predecessor in interest, purchased the property to the south of plaintiff's property including lots 123 and 67 which contain the disputed property.

In 2004, defendants' attorney, Simon H. Rothkrug, Esq., sent a letter to the plaintiff demanding that he remove all encroachments on Lot 67, the Edgemere property, including the fence and deck. Rothkrug asserted that the fence which encroached 32 feet on Lot 67 was in violation of his client's property rights. When the plaintiff failed to remove the fence, the owner of the defendant's property, Mr. Schaeffer, removed the fence [*15]himself on several occasions. Thus, it was clear that as of 2004 the defendant did not acquiesce in or concede the plaintiff's exercise of ownership rights' (see e.g. Asher v. Borenstein, 76 AD3d 984 [2d Dept. 2010]). Therefore this court finds that as of July 16, 2004, the plaintiff was on notice that the owner of the adjoining property was asserting his right to the disputed property and was not acknowledging the plaintiff's ownership of same by adverse possession.

Once the defendants asserted their right to the disputed property and put plaintiff on notice that he was trespassing on their property, any time for adverse possession had ceased. Therefore, one of the material questions requiring a trial is whether the plaintiff's right to the property by adverse possession had ripened from the period commencing when he purchased the property in 1990 through 2004 when defendant claimed the right to his property. Whether or not there was a fence on the property beyond 2004 is irrelevant as the police in 2004 had enjoined any further self-help and notified the parties to settle their differences in court.

Further the plaintiff stated that the shed was removed in 1996 which was prior to the ten year period. Thus, plaintiff failed to demonstrate prima facie that either the shed or the fence improved and substantially enclosed the property for more than 10 years. Although the prior owner produced a letter stating that the shed was there since 1976, it is not clear what the dimensions of the shed was that he was referring to or if it was the same shed shown in 1990 survey. Further, the 1990 deed itself did not include a description of the disputed property (see Comrie, Inc. v Holmes, 40 AD3d 1346 [3d Dept. 2007] Dittmer v Jacwin Farms, 224 AD2d 477 [2d Dept. 1996] Jacobs v Lewicki, 12 AD2d 625 [2d Dept. 1960}; Meerhoff v Rouse, 4 AD2d 740 [4th Dept. 1957]. The fence itself only enclosed the property according to the plaintiff since 1995, and therefore did not exist as a substantial enclosure for ten years when Rothkrug wrote the letter to the plaintiff in 2004. Moreover, based upon the conflicting surveys, some of which show the entire fence and some of which only show a partial fence, there is a question of fact as to how long the fence was in existence and whether it constituted substantial enclosure for ten years prior to 2004.

This court finds that there is also a question of fact with regard to whether the plaintiff cultivated the property from 1990 until 2004 when the defendant asserted his rights to the property. Plaintiff submits affidavits from witnesses stating that he had a fence on the property and that he regularly maintained the property. However there is a question of fact as [*16]to whether his efforts at maintenance and cultivation for a ten year period were sufficient to constitute clear and convincing proof under the law based upon the nature and situation of the property and the uses to which it can be applied (see Robbins v Schiff, 106 AD3d 1215 [3rd Dept. 2013] Asher v Borenstein, 76 AD3d 984 [2d Dept. 2010] Goss v Trombly, 39 AD3d 1128 [3rd Dept. 2007] Giannone v Trotwood Corp., 266 AD2d 430 [2d Dept. 1999] Yamin v Daly, 205 AD2d 870 [3rd Dept. 1994]).

Defendants seek a dismissal of the plaintiff's complaint urging that the plaintiff cannot show exclusive use of the property from 1990 - 1995 as he testified that the area was simply a vacant lot that could be used by the community. However, the plaintiff has provided photographs which he contends are sufficient evidence that he kept the land cultivated and filled and used exclusively as a driveway for his tenants and guests. This Court finds however, that the evidence raises a question of fact however as to whether the proof is sufficient, in light of the character, condition, location, and potential uses for the disputed portion to demonstrate that there was consistent, continuous, open and notorious maintenance for the requisite period and whether the plaintiffs efforts constituted the usual cultivation and improvement based upon the nature of the terrain (see West Middlebury Baptist Church v Koester, 50 AD3d 1494[4th Dept. 2008] Fatone v Vona, 287 AD2d 854 [3rd Dept. 2001] Litwin v. Town of Huntington, 208 AD2d 905[2D Dept. 2004] Manhattan School of Music v Solow, 175 AD2d 106[2d Dept. 1991], and whether the use of the property for the requisite time period was exclusive for the use of the plaintiff and his tenants {see Air Stream Corp. v 3300 Lawson Corp., 99 AD3d 822 [2d Dept. 2012]).

Accordingly, for all of the above stated reasons, it is hereby

ORDERED, that the defendant's motion for summary judgment dismissing the plaintiff's complaint is denied and it is further,

ORDERED, that the plaintiff's cross-motion for an order granting summary judgment and awarding the plaintiff title to the disputed property by adverse possession is denied.

Dated: February 26, 2014

Long Island City, NY

[*17]______________________________

ROBERT J. MCDONALD

J.S.C.