Opinion
October 10, 1995
Appeal from the Supreme Court, Nassau County (Feuerstein, J.).
Ordered that the judgment is affirmed, with costs.
In 1989, the plaintiffs, Mark and Elizabeth Oistacher, contracted with John Merritt to purchase 35 Anchor Drive in Massapequa. The defendants, Norman and Karen Rosenblatt, were the owners of the neighboring property at 37 Anchor Drive. A survey indicated that a triangular parcel of the defendants' property was on the 35 Anchor Drive side of the fence separating the backyards. When Merritt was advised of the problem by Mr. Oistacher, Merritt stated that he believed that he owned the triangular parcel because the fence was erected prior to his taking title in 1978. At the closing, Merritt orally conveyed his rights to the triangular parcel to the plaintiffs.
In 1991, the defendants signed a contract to sell their property and subsequently learned that the fence was not on the property line. The plaintiffs offered to purchase the triangular parcel, but the defendants rejected the offer and removed the fence. Thereafter, the plaintiffs commenced this action to obtain title to the triangular parcel and the defendants counterclaimed for damages. After a nonjury trial, the Supreme Court awarded the plaintiffs title by adverse possession and dismissed the defendants' counterclaims for damages. While we affirm the judgment, we do so for different reasons than the Supreme Court.
Under RPAPL 522, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was either "usually cultivated or improved" (RPAPL 522) or "protected by a substantial inclosure" (RPAPL 522; see, Morris v. DeSantis, 178 A.D.2d 515; City of Tonawanda v. Ellicott Cr. Homeowners Assn., 86 A.D.2d 118). In addition, a party must satisfy the common-law requirement of demonstrating that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for a period of 10 years or more (see, Belotti v Bickhardt, 228 N.Y. 296; Manhattan School of Music v. Solow, 175 A.D.2d 106; Franzen v. Cassarino, 159 A.D.2d 950).
Here, the plaintiffs were required to demonstrate that when they purchased 35 Anchor Drive, the cause of action for adverse possession had already accrued. Because the plaintiffs knew that the defendants were the record owners of the disputed parcel when the plaintiffs purchased the property, an essential element of adverse possession, i.e., claim of right, was negated (see, Van Gorder v. Masterplanned, Inc., 78 N.Y.2d 1106, 1108; Soukup v Nardone, 212 A.D.2d 772; City of Tonawanda v. Ellicott Cr. Homeowners Assn., supra, at 124). Therefore, the plaintiffs' possession of the disputed parcel from 1989 until 1991 was not adverse and cannot be tacked on to Merritt's possession (see, Colnes v. Colligan, 183 A.D.2d 693).
However, the plaintiffs established by clear and convincing evidence (see, Orlando v. Ege, 167 A.D.2d 336, 337; Rusoff v Engel, 89 A.D.2d 587), that from 1978 to 1989, Merritt's possession of the disputed parcel established his right to the property by adverse possession under both RPAPL 522 and the common law (see, Brand v. Prince, 35 N.Y.2d 634, 636; Orlando v Ege, supra; Birnbaum v. Brody, 156 A.D.2d 408, 409; Beddoe v Avery, 145 A.D.2d 818, 819). Moreover, the evidence established that after Merritt attained the possessory interest in the triangular parcel, he orally transferred his interest to the plaintiffs. "Because the possessory title is entirely an incident of the adverse holder's possession, transfer of that possession, even by parol, effects a transfer of the possessory interest" (Brand v. Prince, supra, at 637; see also, Connell v. Ellison, 86 A.D.2d 943, affd 58 N.Y.2d 869). Thus, the Supreme Court properly awarded title to the plaintiffs. O'Brien, J.P., Joy, Altman and Florio, JJ., concur.