Opinion
0315-2007
11-04-2011
Richard Robbins and Rachel Robbins, Plaintiffs, v. Paul Schiff and Susan Schiff, Defendants.
Orseck Law Offices, PLLC By: Gerald Orseck, Esq. Attorneys for Plaintiffs. Reitler, Kailas & Rosenblatt LLC By: Leo G. Kailas, Esq. Attorneys for Defendants.
Orseck Law Offices, PLLC By: Gerald Orseck, Esq. Attorneys for Plaintiffs.
Reitler, Kailas & Rosenblatt LLC By: Leo G. Kailas, Esq. Attorneys for Defendants.
Frank J. LaBuda, J.
This is an action pursuant to Article 15 of the Real Property and Procedure Law. Plaintiffs Richard Robbins and Rachel Robbins seek a declaratory judgment granting them title by adverse possession to a .17 acre portion of Lot 7 of defendants Paul Schiff and Susan Schiff's adjoining property. The Schiffs counterclaim, contending that the Robbins cut trees, bushes and cleared other vegetation upon Schiffs' property, installed a drainpipe thereon, thereby causing erosion.
This case was tried without a jury for seven days. The trial involved a viewing of the premises by the Court, the testimony of at least 20 witnesses, and consideration of 80 exhibits.
Subsequent to the non-jury trial the plaintiffs submitted a post trial memorandum of findings and conclusions as well as a bound volume of transcript pages and exhibits referred to in their post trial submission. Defendant submitted a post trial findings of fact and conclusions of law along with a loose-leaf volume of defense exhibits. Thereafter, defendant submitted a reply to plaintiff's post trial memorandum of facts and conclusions. The Court has also been provided with a full transcript. Findings of Fact
The trial transcript is a four volume set amounting to 1060 pages.
In 1976 the Robbins purchased unimproved Lot 8 in the Edgewood Lake development in Beaverkill, Town of Rockland, in Sullivan County. The Schiffs owned Lot 6. A single-family residence had been built upon that lot some time prior thereto. Subsequently, the Schiffs purchased vacant Lot 7. This action involves a portion of Lot 7 which is located between Lots 6 and 8.
In 1977-1978, the Robbins built a single-family residence on Lot 8 and began to clear trees and brush between the new house and Edgewood Lake. All three lots — Lots 6, 7 and 8, border on Edgewood Lake. At that time, Lots 7 and 8 were unimproved and in a natural, wild state. From the surveys received in evidence, Lot 7 appeared to be about 100 feet wide. The Schiffs maintained throughout the trial that they intended to keep Lot 7 in its natural, wild state.
Prior to purchasing Lot 8, the Robbins walked the property with the developer Fred Haas. Haas walked them to all four corners of the boundary as Haas believed them to be. Haas indicated that the lower portion of Schiffs' Lot 7 was within these boundaries. When the Robbins built their house, they oriented it so that its living room and deck faced the lake in accordance with the boundaries which had been indicated to them by Haas.
The Robbins were then recent graduates from New York University Law School. Rachel Robbins was an associate at the Milbank, Tweed Manhattan law firm where she thereafter practiced banking law for 4-1/2 years. She then became associated with JP Morgan, practicing securities law for the next 20 years and became its general counsel. After JP Morgan merged with Chase Bank, Rachel became an independent management consultant for the legal profession for about 2-1/2 years. She was then retained by Citigroup International as its general counsel. In 2008, she was appointed general counsel to the New York Stock Exchange. Shortly thereafter, she was appointed counsel to and vice president of the International Finance Corp. which is part of the World Bank in Washington DC.
The Schiffs are long-time residents of Sullivan County. Paul Schiff is a dentist. The Schiffs also have a residence in Manhattan. Susan Schiff's father had owned Lot 6 and the house he built thereon, and passed it on to Susan and Paul.
Rachel convincingly testified that after the Robbins built their house in 1977-1978, she and her husband came up from New York almost every weekend, and occasionally for longer periods. They began, and continuously worked on, clearing and grubbing the lower portions of Lots 7 and 8. By 1983, the lower portion of Lot 7, consisting of .17 acres, referred to throughout the trial as the "Disputed Area," had been mowed, weed whacked and cleared. They continued to mow that area until 2006.
There had never been any complaint by the Schiffs until 2006. Some time early that year, the Schiffs observed the Robbins working in the "Disputed Area". As all of the parties then believed that the "Disputed Area" portion of Lot 7 belonged to the Robbins. At that time, the Schiffs gave permission to the Robbins to trim and clear a portion of Lot 7 which bordered on the Schiff side of the "Disputed Area". The Robbins contend that the Schiffs asked them to do it because the "Disputed Area" looked "so nice;" the Schiffs say that the Robbins asked permission to clear beyond the "Disputed Area". Either way, the Robbins then began doing work beyond the Disputed Area and evidently cleared and grubbed more extensively than what was contemplated. The Schiffs specifically did not want any of the viburnum bushes cut down. This, plus other unauthorized work in that area, gave rise to the Schiffs' counterclaim. Schiffs' counterclaim is dealt with later in this Decision.
The Court is convinced that prior to 2006 the Schiffs and the Robbins were good neighbors enjoying the peace and tranquility of the undisturbed nature of the "Beaverkill" area of Sullivan County only 110 miles northwest of Manhatten.
In the Spring of 2006, there had been an incident which apparently occurred on what would be the boundary between the disputed portion of Lot 7 and the balance of Lot 7. James Powell, a lawn maintenance contractor who had been performing services for the Schiffs, Paul Schiff and Pat Murtagh, a contractor who had just completed an extension of the Robbins' house, were involved. Murtagh was then simultaneously refinishing a basement for the Schiffs. He never had any problem with either the Schiffs or the Robbins, both of whom were satisfied with his work. Murtagh testified that during the incident, Paul Schiff pointed out what he believed was the boundary line between Lots 7 and 8, and he pointed out a line which included the .17 "Disputed Area" as part of the Robbins' Lot 8. Paul Schiff denied that he had ever pointed out as to anything. James Powell, antagonistic toward Murtagh by his own admission, stated that Paul Schiff did gesture or point out to what he thought was the record boundary between Lots 7 and 8. Schiff's gestures, according to Powell, were approximately to the record boundary line.
Having observed the witnesses, considering the fact that Schiff denied ever having made any gestures with respect to the boundary line, Powell's antagonistic attitude toward Murtagh, and Murtagh's entirely neutral posture in the case, the fact that Paul Schiff had apologized to Murtagh for the manner in which Powell had sounded off at Murtagh during the incident, the Court accepts Murtagh's version of the incident. Indeed, two years earlier, Murtagh had described the incident at his deposition and in an affidavit, which included the approximate line that Paul Schiff had indicated he believed was the boundary between Lots 7 and 8. That line is approximately the boundary between the "Disputed Area" and the balance of Schiff's Lot 7. Rachel Robbins produced numerous checks written by her to Andy Taggart for lawn mowing, including mowing within the "Disputed Area", from July 9, 1989 to July 5, 1999. She testified that Taggart had mowed in the "Disputed Area" even prior to 1989 but she couldn't find any checks prior to that time. Powell himself had done some mowing for the Robbins and admitted that he mowed into the "Disputed Area". The mowing continued by Richard Robbins and others until 2006.
Nancy Humphreys, a long-time friend and co-employee at JP Morgan, visited with the Robbins at Edgewood Lake "at least once a year, if not twice a year." Photos taken in 1994 showed Humphreys and others on a bench in the "Disputed Area". Humphreys credibly testified that her children played in the "Disputed Area" all the time whenever she was visiting the Robbins. Other photographs taken in 1998 showed the Robbins in the "Disputed Area" with outdoor furniture and a sundial.
In general, the Court finds credible and believable evidence to establish as fact; that by 1983 the "Disputed Area" had been mowed, weed whacked and cleared; that this occurred continuously, and throughout the 10-year period of the late 1980-1990's and thereafter. During that time, the Robbins used the "Disputed Area" in the normal way that property is enjoyed by playing ball with the kids, installing a target and using it for archery, hitting floating golf balls into the lake, planting blueberry bushes, planting trees, planting a garden, hanging birdhouses in the trees, setting up outdoor furniture and a sundial, eating outside by the Lake. These activities were in addition to normal mowing, cultivation and clipping in the "Disputed Area". The Schiffs did nothing to interrupt or prevent the Robbins' activities within the "Disputed Area". Such use was open, notorious, continuous and under claim of right.
Dr. Paul Schiff agreed that his deposition testimony was correct that the "Disputed Area" was so overgrown that you virtually or actually couldn't walk through it . . . ." And, indeed, the Schiffs had always told James Powell that when he was doing lawn maintenance for them that they wanted to keep Lot 7 wild. It is clear to the Court that when Paul Schiff was referring to the "Disputed Area", he was referring to the larger portion of Lot 7 immediately adjoining their lawn on Lot 6, which portion is not part of the Robbins' claim. Powell's billing records do not show otherwise and the numerous aerial photographs substantiate this designation as wild versus the maintained landscape of Lot 7.
William Crawbuck was called by the Schiffs. He was an aerial photographer and was familiar with aerial photogrammetry, aerial mapping and aerial surveys. He had located U.S. Geodetic Survey aerial photographs of the properties involved in this litigation taken in 1997, 2001, 2004 and 2006. Crawbuck testified that the resolution of the aerial photographs shown to him was "probably the lowest resolution we like to use." Crawbuck testified that all four of these aerial photographs showed that a small portion of lawn was in the "Disputed Area". It is common ground in this case that the "Disputed Area" consists of .17 acre. Crawbuck's testimony and the aerial photographs confirm the fact that the Robbins had, indeed, created a lawn, and cultivated and mowed within the "Disputed Area".
The Schiffs' defenses consisted of contentions that they used the "Disputed Area" in order to negate Robbins' claim of exclusive possession. The Court rejects this contention. The Schiffs themselves contended that Lot 7 was "so wild and overgrown that one could not walk through it". Consequently, by their own admission, they could not use it and wanted "their land" in Lot 7 to be kept "wild".
The Schiffs introduced testimony concerning a certain maple tree and a certain spruce tree. These tress were lovingly photgraphed and observed by the Court and are crucial to this boundry dispute. Insofar as the maple tree is concerned, a friend of the Schiffs, Jeffrey Kerman, testified that in the 70's, Paul Schiff and Kerman were staying at a neighbors house, not the Schiff house, and Paul had a small 3-foot tree dug out of the ground and replanted it. He couldn't identify the tree in a subsequent picture. Paul Schiff said that he planted that tree in 1988. The Robbins contend that they planted that tree. The wide discrepancies as to the origination of that tree in the testimony of Rick Robbins, Paul Schiff and Schiffs' witness Kerman, preclude the Court from making any finding with respect thereto which would have any relevance to the issues in this case. However, all of the parties are in agreement that the tree was planted in 1988 at the latest and, thus, before the 1989-1999 prescriptive period relied upon by the plaintiff in this case.
Insofar as the spruce or evergreen tree is concerned, Paul Schiff stated that he planted it near the lake in 1981 on the record boundary line between Lots 7 and 8. The Robbins insist they planted that tree. The Schiffs also contend that in 1976 they planted a Norway spruce in the same area to mark the boundary of the property. The 1976 tree was planted before the Robbins acquired Lot 8, before they started to clear any portion of the "Disputed Area" and, therefore, is irrelevant to the issues in this case. The Court cannot accept the fact that the Schiffs planted that tree to mark a boundary in what they contend was an already heavily wooded area. Assuming, arguendo, the Schiffs planted the evergreen tree in 1981, and the Court is not necessarily convinced of that fact, the Robbins cultivated, mowed, cleared and used the area around that tree — the "Disputed Area" — for 24 years thereafter until 2006. Finally, the fact that James Powell planted other evergreen trees on the upper part of the boundary line between Lots 7 and 8 is irrelevant; those trees are not within the "Disputed Area" and were also viewed by the Court during its fact finding visit to the premises.
With respect to the Schiff counterclaim, in May of 2006 Powell had transplanted some of the Schiffs' blueberry trees. Powell testified that this was done as the result of a conversation between Susan Schiff and Rachel Robbins. As already stated, the Schiffs had agreed that the Robbins clear an additional portion of Lot 7, further into Lot 7 from the "Disputed Area". At Powell's insistence, the Robbins were told not to cut down the viburnum bushes. The next time, later that Spring or early Summer, that Powell visited the property, he found that the viburnums had been cut down. He called the Schiffs in Long Island and told them about it. He also told the Schiffs that the Robbins had "bulldozed the dirt even further onto the property towards the lake, probably by another 40 or 50 feet into the property." The dirt Powell was referring to was excess material from the excavation performed by Murtagh in conjunction with the extension to their house. Having received the telephone call from Powell, the Schiffs told Powell to build a fence. In September 2006, he constructed a fence on the record boundary line between Lots 7 and 8.
It is apparent that Robbins exceeded the permission given to them by the Schiffs to clear the area further into Lot 7 from the "Disputed Area". The Robbins, in fact, cut the viburnum bushes, and cleared natural lakefront marsh from the lower portion of Lot 7. Furthermore, during Murtagh's 2006 extension of the Robbins' residence, a rainwater drainpipe was installed a few feet into the Schiff property. Upon the Court's visit to the property four years after the installation was made, there was no erosion and the small portion of the pipe which protruded from the ground was barely discernible. Excess excavation material from the Robbins' extension had been spread on the balance of Schiff's Lot 7. A bulldozer got stuck in the lower part of that Lot, but whatever disturbance to the terrain had occurred, it had been leveled off, and nature took its course. There is no evidence that the Robbins cut any trees in the further part of Lot 7; there were no stumps, nor was there any credible evidence that the remaining trees became diseased as a result of the excavated dirt being spread thereon. Indeed, when the Court viewed the premises, it was unable to independently find that natural vegetation had not once again taken hold. The lakefront marsh had been removed, and other natural vegetation, including saplings, had taken hold.
In their post-trial submissions, the Schiffs contend that as a result of the Robbins' unauthorized acts as just described, they were damaged in the sum of $25,000, plus punitive damages. The Robbins contend that such damages could not exceed $3,000. Considering the small amount of land affected, and the fact that the Schiffs always intended to keep that area wild and natural, the Court finds that Twenty Thousand ($20,000.00) Dollars would be fair and reasonable compensation to the Schiffs upon their counterclaim. Conclusions of Law
This action was commenced prior to the 2008 amendments to the Real Property Acts and Procedure Law (RPAPL). Former RPAPL §522, then applicable, provided that:
"land is deemed to have been possessed and occupied in either of the following cases, and no others:
1.Where it has been usually cultivated or improved."
The pre-2008 adverse possession law applies to this case, as does the 10-year presumptive period as set forth in CPLR §210.
The Robbins' activities within the "Disputed Area" as found by the Court establish clear and convincing evidence satisfying the then statutory elements of adverse possession of open, notorious as well as cultivated or improved. These elements are discussed generally in Wagman v. Village of Catskill, 213 AD2d 775 (3rd Dept., 1995). The regular mowing of grass in the "Disputed Area" at least throughout the 10-year period from 1989-1999 and thereafter established sufficient cultivation to establish adverse possession under the pre-2008 statute. See, Wagman v. Village of Catskill, supra ; Birnbaum v. Brody, 156 AD2d 408 (2nd Dept 1989); Woodrow v. Sisson, 154 AD2d 829 (3rd Dept 1989); Mastin v. Village of Lima, 86 AD2d 777 (4th Dept 1982); McCosker v. Rollie Estates, 7 AD2d 865 (2nd Dept 1959).
As in Wagman, supra at 777, "[t]he evidence . . . reveals that plaintiffs' family regularly mowed the lawn on the disputed area, cut and cleared bushes and trees, and kept the property cleared for recreational use."
Robinson v. Robinson, 34 AD3d 975 (3rd Dept 2006) held that; "The type of improvement or cultivation activity "sufficient to supply the record owner with notice of an adverse claim will vary with the nature and situation of the property and the uses to which it can be applied' and must consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners.'"
The Robbins' use of the "Disputed Area", and, indeed, of their own Lot 8 was constrained by the deed restrictions to the Edgewood Lake development, i.e., no fences. The Robbins' use of the property was that which would be expected of a thrifty owner considering the wooded nature of the property. Robbins' recreational and other use of the "Disputed Area" set forth in the Court's Findings of Fact, supra, coupled with the mowing and cultivation, more than satisfied the pre-2008 requirements to prove adverse possession. Such use was open, continuous, notorious and under claim of right.
The Court has found that at the Spring 2006 incident involving him, James Powell and Pat Murtagh, Paul Schiff admitted that he believed that the .17 acre portion of Lot 7, the subject of this action, belonged to the Robbins. In a civil action, "the admission by a party of any fact material to the issue is always competent evidence against him . . . ." Reed v. McCord, 160 NY330, 341 (1899); Smolinski v. Smolinski, 78 AD3d 1642 (4th Dept 2010).
The defendants devoted a large part of their case contending that the Robbins being attorneys, submitted plans and application to the Town of Rockland for building permits, thereby suggesting that the Robbins always knew the record boundary. This Court makes no such finding, but even had it, "[a]n adverse possessor's actual knowledge of the true owner is not fatal to an adverse possession claim." Walling v. Przybylo , 7 NY3d 230 (2006).
Prior to 2006, the parties had a friendly relationship, but such relationship does not establish, or even tend to establish, consent to the Robbins' use of the Disputed Area. Sleasman v. Williams, 187 AD2d 852 (3rd Dept 1992). The fact that, for the most part, the Robbins used their lakeside residence with the "Disputed Area" on a seasonal basis does not affect their claim. Robinson v. Robinson, supra.
That Susan Schiff may have picked blueberries within the "Disputed Area" on a few occasions during the statutory period, does not render plaintiffs' possession non-exclusive so long as such use did not interfere with plaintiffs' activities. The Schiffs failed to establish that blueberry picking on a few occasions, occasionally walking across or fishing from the lakeshore, or crossing the "Disputed Area" with a snowmobile, in any way interfered with the Robbins' use of the "Disputed Area". Robinson v. Robinson, supra; Levy v. Kurpil, 168 AD2d 881 (3rd Dept 1990), lv den 77 NY2d 808 (1991).
However, the Schiffs have proven their counterclaim to the extent that they have suffered property damage caused by Robbins' excessive clearing and grubbing of the uncontested lower portion of Lot 7, in the sum of Twenty Thousand ($20,000.00) Dollars, with interest from June 1, 2006.
Plaintiff shall submit, within twenty days herefrom, and on fifteen days' notice to the defendants, a proposed judgment in accordance herewith, which shall include a metes and bounds description of the .17 acre "Disputed Area" consistent with plaintiffs' Exhibit 11, to be awarded to plaintiffs by adverse possession and the finding upon the defendant's counter-claim above.
This shall constitute the Decision of this Court in accordance with CPLR §4213(b).
The original decision and all papers are being filed by this Court with the Supreme Court Clerk for transmission to the Sullivan County Clerk's Office.
The signing of this Decision shall not constitute entry or filing under CPLR §2220. Counsel are not relieved from the provisions of that rule regarding filing, entry and notice of entry.
Monticello, NY
________________________________
Hon, Frank J. LaBuda
Acting Supreme Court Justice