Opinion
April 8, 1996
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order is reversed insofar as appealed from, with costs, and the branch of the plaintiff's motion which was for summary judgment quieting his title to the triangular piece of real property is granted.
It is well settled that a party seeking summary judgment "must 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" ( Ayotte v. Gervasio, 81 N.Y.2d 1062). A prima facie showing shifts the burden to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material questions of fact ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320).
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 was either "usually cultivated or improved" or "protected by a substantial inclosure" (RPAPL 522).
In addition, the party must establish, by clear and convincing evidence, the common-law requirement of demonstrating that the possession of the parcel was hostile, under a claim of right, actual, open, notorious, and exclusive, and it must have been continuous for the statutory period ( see, Brand v. Prince, 35 N.Y.2d 634; Manhattan School of Music v. Solow, 175 A.D.2d 106).
Here, the plaintiff, as an adverse user, entered upon real property under the misapprehension that the parcel was part of his land, and cultivated the parcel by planting a hedgerow, rose bushes, and a rock garden, a use consistent with the nature and character of the parcel.
The trial court denied the branch of the plaintiff's motion which was for summary judgment quieting his title to the disputed parcel holding that there was a question of fact as to whether the plaintiff possessed the parcel under a claim of right.
We find that the plaintiff has made the requisite showing, by clear and convincing evidence, that his possession was "hostile and under claim of right, actual, open and notorious, exclusive and continuous" ( Brand v. Prince, 35 N.Y.2d 634, 636, supra). Contrary to the defendants' claim of lack of hostility, the plaintiff's possession does not require a showing of enmity or specific acts of hostility ( see, Anderson v. Koroleski, 237 N.Y.S.2d 397, 399). All that is required is a showing that the possession constitutes an actual invasion of or infringement upon the owner's rights ( see, Weil v. Snyder, 25 A.D.2d 605). Consequently, hostility may be found even though the possession occurred inadvertently or by mistake, as is the likely situation here ( see, Bradt v. Giovannone, 35 A.D.2d 322, 325-326). In any event, if the use is open, notorious, and continuous for the full 10-year statutory period, a presumption of hostility arises ( Belotti v. Bickhardt, 228 N.Y. 296; Wildove v. Papa, 223 App. Div. 211, 215).
Finally, inasmuch as the defendants have failed to submit any competent evidence to rebut the plaintiff's proof, the defendants have failed to raise a triable issue of fact so as to preclude granting the plaintiff summary judgment ( see, Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 N.Y.2d 557).
Accordingly, the order of the Supreme Court is reversed insofar as appealed from, and the branch of the plaintiff's motion which was for summary judgment quieting his title to the land in question is granted. Mangano, P.J., Miller, Ritter and Hart, JJ., concur.