Plaintiffs commenced this action on April 5, 2010 pursuant to Real Property Action and Proceedings Law §§ 521 and 522, seeking a judgment declaring that they are the lawful owners, by adverse possession, of certain real property consisting of a portion of a lot which allegedly abuts the rear of their real property (the disputed portion). Plaintiffs, who reside at 78-15 Woodhaven Boulevard, Queens, New York, claim they have been in actual, open, notorious, and continuous possession of the disputed portion since they purchased their property on May 26, 1998 from Ronald and Lynn Algiere, the prior record owners, and that the Algieres also had utilized the disputed portion as a backyard patio since the Algieres acquired title in 1984.

Defendant served an answer, asserting affirmative defenses based upon failure to state a cause of action, and interposing counterclaims for use and occupancy, ejectment, and seeking punitive damages and an award of sanctions and attorneys' fees. It is unclear from the submissions whether plaintiff served a reply.

With respect to that branch of the cross motion by defendant for summary judgment on its counterclaim for ejectment, defendant has failed to demonstrate there was a reply to the counterclaims (CPLR 3212[a]; City of Rochester v Chiarella, 65 NY2d 92, 101 [1985] ["[a] motion for summary judgment may not be made before issue is joined (CPLR 3212[a]) and the requirement is strictly adhered to"]). No copy of the reply has been provided the court, and no copy is on file in the records of the County Clerk (see CPLR 3212[b]; Deer Park Associates v Robbins Store, Inc., 243 AD2d 443 [2d Dept 1997]; Lawlor v County of Nassau, 166 AD2d 692 [2d Dept 1990]). That branch of the cross motion by defendant for summary judgment on its counterclaim for ejectment is denied (see Union Turnpike Assoc., LLC v Getty Realty Corp., 27 AD3d 725, 727—728 [2d Dept 2006]).

With respect to that branch of the cross motion by defendant which is, in effect, pursuant to CPLR 3126(3) to dismiss the complaint, defendant asserts that it served plaintiffs with a demand dated January 24, 2011 for the production and inspection of plaintiffs' deed, title report and title insurance policy and surveys, any correspondence between plaintiffs or plaintiffs' predecessor in interest and the LIRR or MTA, or between plaintiffs and defendant, regarding their property, and the name and address of the attorney which represented plaintiffs in connection with their purchase.

Plaintiffs responded to the demand, indicating their deed for their property was a public record, that they were not in possession of any title report, insurance policy or survey, they could not recall the name or address of the attorney who represented them in connection with the purchase, and that correspondence between plaintiffs and the LIRR or MTA was in the possession of the LIRR and MTA. Plaintiffs also responded that prior to April 5, 2010, other than a certain letter, (described as "the letter caused by defendants [sic] improper illegal trespassing"), there was no communication between plaintiffs and defendant or defendant's representatives.

Thereafter, plaintiff Kathleen R. Grace testified, at her examination before trial on January 10, 2013, that she maintained a file regarding the property in a "draw" in her bedroom in [*2]her house, and that the file included papers pertaining to the purchase of the house. In addition, she testified that she caused a survey to be made when she bought the house, but did not remember whether she obtained title insurance in connection with the purchase. She also testified that she did not know if the survey or a title insurance policy was in the file, but admitted she had had no occasion to look in the file during the course of the litigation, claiming no one had made a request for her to look for any document in the file. She also admitted it could have been "years ago" when she last looked in the file. By letter dated January 17, 2013, defendant demanded the production of the contents of the file.

By notices of motion dated March 28, 2013 and April 29, 2013, plaintiff moved to vacate the dismissal of the action for failure to appear in the Trial Scheduling Part, to restore the matter to the active "pre-note of issue" calendar, and to direct the completion of discovery. By order dated July 9, 2013, the court directed that plaintiffs file a new note of issue, and upon such filing, directed the matter be restored to the trial calendar, and the parties, within 30 days of the date of the order, respond to the outstanding requests for discovery and inspection, including demands made following the examinations before trial, and provide the information requested to the extent that such information was within plaintiffs' knowledge, possession or control.

By letters dated December 23, 2013 and March 6, 2914, defendant again demanded plaintiffs to produce the file they maintained, constituting the outstanding discovery. Defendant admits that it now has a copy of the survey prepared for plaintiffs at the time of their purchase,^[FN1] and offers it in support of its cross motion and opposition to the motion by plaintiffs. Defendant asserts, however, that plaintiffs have failed to provide the other sought-after documents, and therefore have violated the July 9, 2013 order. In addition, defendant argues that plaintiffs were aware upon their purchase that the disputed portion was owned by the record owner, and that the sought-after documents are relevant on the issue of whether plaintiffs have a "claim of right," a necessary element to their adverse possession claim.

In reply, plaintiffs make no claim that they were not served with a copy of the July 9, 2013 order, or that they provided the sought-after items in accordance with therewith. Nor do they state that they are not in possession of any title report or insurance policy, survey or correspondence with the LIRR or the MTA regarding their property. Rather, it appears that they seek to excuse the production of the documents by arguing that their right to the disputed portion vested on May 26, 2008, prior to the amendments of RPAPL article 5 (see L 2008, ch 269 [eff July 7, 2008]), and that under the law existing on such date, any actual knowledge by the possessor of the true owner did not destroy the element of claim of right (see Walling v Przybylo, 7 NY3d 228, 232 [2006]).

RPAPL 501(3), which defines "claim of right," is generally applicable to actions [*3]involving claims of adverse possession that are commenced after its effective date of July 7, 2008, however, it does not apply here because plaintiffs' property right, as alleged, vested by adverse possession prior to the enactment of the statute (see Shilkoff v Longhitano, 94 AD3d 974, 976 [2d Dept 2012]). In addition, the statute "cannot be retroactively applied to deprive a claimant of a property right which vested prior to [its] enactment" (Hogan v Kelly, 86 AD3d 590, 592 [2d Dept 2011]).

Thus, plaintiffs, to claim title to real property by adverse possession, in accordance with the law as applicable here, must demonstrate that the parcel was "usually cultivated or improved" or "protected by a substantial inclosure" (RPAPL former 522 [1], [2]; see BTJ Realty, Inc. v Caradonna, 65 AD3d 657, 658 [2d Dept 2009]; Walsh v Ellis, 64 AD3d 702 [2d Dept 2009]). In addition, they must demonstrate, by clear and convincing evidence, satisfaction of the following five common-law elements of the claim over the course of the applicable statutory period: (1) the possession must be hostile and under a claim of right; (2) it must be actual; (3) it must be open and notorious; (4) it must be exclusive; and (5) it must be continuous (see Belotti v Bickhardt, 228 NY 296, 302 [1920]; Almeida v Wells, 74 AD3d 1256 [2d Dept 2010]). " [A]n 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' " (Merget v Westbury Props., LLC, 65 AD3d 1102, 1104-1105 [2d Dept 2009], quoting Gerlach v Russo Realty Corp., 264 AD2d 756, 757 [2d Dept 1999]; see Walling v Przybylo, 7 NY3d at 232).

The outstanding discovery, i.e., the deed, survey, and correspondence with the LIRR or MTA, and any title insurance policy and report, are relevant on the issues of plaintiffs' ownership interest in their property, and may have a bearing on the issues relative to the disputed portion regarding exclusivity and whether an overt acknowledgment was made by plaintiffs during the statutory period that ownership rested with another party (see Walling v Przybylo, 7 NY3d at 232; Galli v Galli, 117 AD3d 679, 680-681 [2d Dept 2014]; Merget v Westbury Props., LLC., 65 AD3d 1102, 1105 [2d Dept 2009]); cf. RPAPL 501[3], as amended by L 2008, ch 269).

Plaintiffs, therefore, were obligated to produce such items, if they were in their possession, in accordance with the July 9, 2013 order, within 30 days after service of a copy of such order, and have offered no valid excuse for failure to comply with the prior order. The cross motion is granted to the extent of directing plaintiffs to comply with the July 9, 2013 order by producing any deed, survey and title insurance policy and report relative to their purchase of their property, and any correspondence between plaintiffs and the LIRR or MTA in their possession, within 10 days of service of a copy of this order, with notice of entry. In addition, in the event plaintiffs are not in possession of any title insurance policy or report, plaintiffs shall submit to defendant an affidavit indicating such lack of possession within 10 days of service of a copy of this order with notice of entry. Upon failure by plaintiffs to produce the items, and submit any affidavit in the event of lack of possession of a title insurance policy or report, the complaint shall be stricken upon renewal of the (cross) motion.

The motion by plaintiffs for summary judgment in their favor and to dismiss the counterclaims is denied without prejudice to renewal within 30 days following the production of the sought-after documents, and corresponding affidavit, if any.

September 5, 2014______________________________

ROBERT J. McDONALD

J.S.C.