Opinion
608783/2018
10-18-2019
Fred S. SGANGA and Marianne Sganga, Plaintiffs, v. Lynn ROZZI a/k/a Lynn R. Casey, Defendants.
PLAINTIFFS' ATTORNEYS: CRACO & ELLSWORTH, LLP, 7 High Street, Huntington, New York 11743 DEFENDANT'S ATTORNEY, KEITH S. GARRET, P.C., 1801 Argyle Square, Babylon, New York 11702, HANTMAN & ASSOCIATES, 1120 Avenue of the Americas, 4th Floor, New York, New York 10036
PLAINTIFFS' ATTORNEYS: CRACO & ELLSWORTH, LLP, 7 High Street, Huntington, New York 11743
DEFENDANT'S ATTORNEY, KEITH S. GARRET, P.C., 1801 Argyle Square, Babylon, New York 11702, HANTMAN & ASSOCIATES, 1120 Avenue of the Americas, 4th Floor, New York, New York 10036
Sanford Neil Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Order to Show Cause (seq. 001) by plaintiff, dated July 20, 2018, and supporting papers; (2) Affirmation in Support by counsel for plaintiffs, dated June 20, 2018, and supporting papers; (3) Affirmation in Opposition by counsel for defendant, dated June 25, 2018, and supporting papers; (4) Affidavit in opposition by defendant, dated August 16, 2018, and supporting papers; and (5) Reply Affirmation dated August 20, 2018 and supporting papers, it is,
ORDERED, that the Order to Show Cause (seq. 001) made by plaintiffs seeking an Order pursuant to CPLR § 6301, awarding a preliminary injunction thereby enjoining and restraining defendant, her agents, officers, employees, successors, assignees and all persons acting in concert with or on behalf of the defendant from engaging in the actions specified in the Order to Show Cause, is GRANTED solely to the extent that the defendant is enjoined, pending the final determination of this action, from removing or otherwise altering the placement or configuration of the wooden ties that transect the northwestern corner of her parcel, subject to plaintiffs providing an undertaking in the amount of [$25,000.00], pursuant to CPLR 6312[b], and is otherwise DENIED .
This action involves a dispute over the ownership of a triangular-shaped section of land that plaintiffs claim they have acquired by adverse possession and that the defendant contends remains part of her lot, as well as allegations of slander, prima facie tort and property damage asserted by the defendant as counterclaims. The matter is now before the court on plaintiffs' motion for a preliminary injunction. For the reasons that follow, the motion is granted in part and denied in part.
Plaintiffs Fred and Marianne Sganga are the owners of 17 Fairway Place in Cold Spring Harbor, New York (the "Sganga property"), which they acquired by deed dated October 2, 1992. Defendant Lynn Casey is the owner of an adjacent parcel, 19 Fairway Place (the "Casey property), which she acquired by deed dated February 9, 1999. Ms. Casey's residence, a one-family dwelling, is located approximately 110 linear feet up a steep, wooded hill that rises above the Sganga property. The Sgangas' residence, also a single-family dwelling, is set on a plateau that begins at the bottom of the hill. Two layered rows of railroad ties cut across the northwest corner of the Casey property in two unequal segments, forming terraces against the slope and producing a flat section of land that is almost, but not quite, in the shape of a right triangle, the perpendicular legs of which run along portions of the mapped borders of the Sganga and Casey properties. The Sganga property, which does not abut Fairway Place but is reached through an access easement that opens onto adjacent Elm Street, wraps around portions of the northwestern and southwestern boundaries of the Casey property. Although the parties have not provided exact measurements, it appears from the survey maps they have each produced that the Sgangas' residence, which is set at a diagonal to the rectangular Casey property, at its closest point is situated less than ten feet from the northwest corner of the Casey property and that a deck attached to the Sgangas' house runs along, but does not encroach upon, the mapped boundary line between the two properties for a similar distance.
Ms. Casey alleges that at the time she purchased 19 Fairway Place, a survey of her parcel was filed and monuments and flags were put in place to demarcate the exact boundary lines that separate her property from plaintiffs, to which plaintiffs did not object. She further alleges that although plaintiffs from time to time used a "small fraction" of her property where it bordered theirs, they did so with her "implicit permission" and that she was not aware that "there was an issue with plaintiffs' acknowledgment of her propert[y's] boundary" until the current action was commenced. The Sgangas take a very different view, alleging that from the time they acquired their property in 1992, they believed that the railroad ties defined the perimeter of their backyard and that since that time, they have continuously caused the lawn and planting beds formed by the wooden railroad ties to be cultivated, maintained and improved by landscapers hired by them and have used the area as if it were part of their property.
It is undisputed that the piece of property in question lies within the surveyed and recorded boundary lines of the Casey property. It also appears to be undisputed that with the possible exception of the wood railroad ties—the provenance of which is uncertain on the current record and which plaintiffs claim make up a retaining wall—or walls—and defendant now characterizes as merely forming "ornamental" planting beds—there are currently no physical structures on the disputed parcel. According to Ms. Casey, on June 7, 2017, a crew hired by her began to cut down trees behind her house and "within the vicinity of the [w]ooden" railroad ties, which plaintiffs "protested" by, among other things, calling the police, who ultimately directed the crew to leave. On September 20, 2017, one of Ms. Casey's attorneys wrote a letter to plaintiffs, among other things complaining that they had damaged the Casey property by installing a "wood tie retaining wall," by removing and clearing vegetation from the area "beyond" that, and "by planting flowers and trees in the area." The letter further stated that Ms. Casey had been advised that because vegetation had been removed, she needed to erect a retaining wall to prevent erosion and that plaintiffs would be expected to pay for that and for the removal of the wood ties, and it cautioned defendants against crossing the property line, which had recently been staked to "facilitate" the erection of a fence along the parties' joint property line. Subsequent efforts to resolve the dispute proved fruitless, and a fence was erected by Ms. Casey on May 4, 2018. Plaintiffs commenced this action four days later, on May 8, 2018, by filing a summons and complaint seeking, among other things, an order declaring that plaintiffs had obtained title to the subject property by adverse possession, enjoining the removal of the retaining wall, and directing Casey to remove the fence, which by then had been erected, and awarding damages for trespass and unlawful tree removal from plaintiffs' property. In her answer dated June 5, 2018, Casey denied the material allegations of the complaint and asserted counterclaims against plaintiffs for damaging the structural integrity of her house and for defamation and prima facie tort.
The preliminary injunction that the Sgangas are seeking would both require the defendant to remove a fence that she erected shortly before this action was commenced along the boundary line between the two properties and enjoin her from removing the railroad ties. In support of their motion, the Sgangas contend that the threatened removal by defendant of the railroad ties would expose the Sganga property to possible erosion and remove the boundary that they claim has defined their backyard throughout the time they have lived in their current home. They also contend that the fence dissects their backyard and intrudes to within feet of their back door, thereby effectively preventing them from enjoying access to and control over their property, and that the construction of the fence and removal of what they claim is a retaining wall will disturb the status quo and have a negative impact on the market value of their property, making it more difficult to sell. It is their position that without injunctive relief, the character and value of their property will be irreparably harmed. Defendant Casey opposes the motion, contending that the railroad ties simply create ornamental planting beds and were never intended or understood to "delineate" the boundary of her property, that the Sgangas' claimed "use" of the portion of her property that they now claim that they own—for planting and landscaping—was both permissive and, in the context of a claim of adverse possession, de minimis, and—perhaps conversely—that the Sgangas' activities on her property have been damaging and will require the installation of "a significant retaining wall to prevent erosion and the possible collapse of the slope in the vicinity of the Wooden Ties."
Discussion
"It is well established that the decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court (see Doe v. Axelrod, 73 NY2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272[1988] ). In exercising that discretion, however, the Supreme Court must consider several factors, including whether the moving party has established (1) a likelihood of success on the merits, (2) irreparable harm if the injunction is denied, and (3) a balance of the equities in favor of the injunction (see CPLR 6301, 6312 [a] ; W.T. Grant Co. v. Srogi, 52 NY2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953[1981] ; Clarion Assocs. v. D.J. Colby Co., 276 AD2d 461, 714 N.Y.S.2d 99[2d Dept 2000] ; Merscorp, Inc. v. Romaine , 295 AD2d 431, 432 [2d Dept 2002] ). Further, where the moving party has an adequate remedy at law by "which his or her rights can be protected and properly conserved," an injunction will not be granted ( 67A NY Jur 2d, Injunctions § 24 ; Gaynor v. Rockefeller , 15 NY2d 120, 132, 256 NYS2d 584 [1965] ).
Likelihood of success on the merits
In 2008, the Legislature enacted amendments to Article 5 of the Real Property Actions and Proceeding Law (see L 2008, ch 269, § 5) "to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights" ( Estate of Becker v. Murtagh , 19 NY3d 75, 81, footnote.4 [2012] ). In particular, the Legislature "altered the requirements that must be made out where"—as here—"the adverse possession claim is not based on a written instrument ( RPAPL 522 )" (id. ) , and, with the enactment of the current RPAPL § 543, narrowed the circumstances in which an adjoining landowner can claim ownership by adverse possession of a bordering portion of his neighbor's property:
RPAPL § 522 provides as follows:
§ 522. Essentials of adverse possession not under written instrument or judgment.
For the purpose of constituting an adverse possession not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:
1. Where there have been acts sufficiently open to put a reasonably diligent owner on notice.
2. Where it has been protected by a substantial enclosure, except as provided in subdivision one of section five hundred forty-three of this article.
§ 543. Adverse possession; how affected by acts across a boundary line.
1. Notwithstanding any other provision of this article, the existence of de minimus non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.
2. Notwithstanding any other provision of this article, the acts of lawn mowing or similar maintenance across the boundary line of an adjoining landowner's property shall be deemed permissive and non-adverse.
Measured by the current standard, then, and given the factual record as it now exists, it is doubtful that plaintiffs would succeed in making the showing necessary to establish ownership by adverse possession of the disputed portion of defendant's lot. However, to the extent that plaintiffs are claiming that their right to possess the corner of the Casey property vested prior to July 7, 2008—the effective date of the 2008 amendments to RPAPL Article 5—their claims are governed by the nominally less stringent body of prior law ( Estate of Clanton v. City of New York , 153 AD3d 787, 60 NYS3d 362 [2d Dept 2017] ; see also Galchi v. Garabedian , 105 AD3d 700, 961 NYS2d 588 [2d Dept 2013] ; Pakula v. Podell , 103 AD3d 864, 962 NYS2d 254 [2d Dept 2013] ; Hosan v. Kelly , 86 AD3d 590, 927 NYS2d 157 [2d Dept 2011] ; Warren v. Carreras , 133 AD3d 592, 19 NYS3d 309 [2d Dept 2015] ). Nonetheless, it has been said that, historically, "New York disfavors procuring title through adverse possession" ( Stickler v. Halevy , 794 F Supp 2d 385, 395-96 [EDNY 2011] [Weinstein, J.], quoting Belotti v. Bickhardt, 228 NY 296, 127 N.E. 239, 243 [1920] ). Thus, even in cases governed by the law as it existed prior to the 2008 amendments, adverse possession can only be established by demonstrating, by clear and convincing evidence, that the claimed possessors "usually cultivated, improved or substantially enclosed the land" at issue ( Walsh v. Ellis , 64 AD3d 702, 703, 883 NYS2d 563 [2d Dept 2009] ; see RPAPL former § 522 ), and that their possession of the property was "(1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for [ten years]" (See Walling v. Przybylo , 7 NY3d 228, 232, 818 NYS2d 816 [2006] ; see also Bratone v. Conforti-Brown , 79 AD3d 955, 913 NYS2d 762 [2d Dept 2010] ).
There does not appear to be any serious disagreement at this stage in the proceedings that the Sgangas' use of the disputed portion of defendant's lot, such as it was, has been "actual," "open" and "notorious" and that it continued without interruption for over ten years. The main points of contention between the parties concerns whether plaintiffs can establish that they "usually cultivated, improved or substantially enclosed the" piece of land at issue and, if they can do so, whether their claimed use of the piece of land was exclusive as well as hostile and under a claim of right.
With respect to the elements of hostility and claim of right, the Sgangas contend that when they acquired their home, they mistakenly believed that the railroad tie "wall" marked the deeded perimeter of their backyard and that their backyard, therefore, included the section of lawn that, together with the railroad ties, constitutes the disputed parcel. Casey, for her part, contends that plaintiffs had actual knowledge that they were not the true owners of the disputed area from the time they began to use it and certainly from the time she took title to the property, and that their use of the disputed parcel was at the very least implicitly permissive.
The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the "unequivocal acts of the usurper" ( Monmot v. Murphy , 207 NY 240, 245, 100 N.E. 742 [1913] ; see Walling v. Przybylo , 7 NY3d 228, 232, 818 NYS2d 816 [2006] ). Thus, according to the law in effect through the time that plaintiffs' claim that their alleged ownership of the disputed area by adverse possession vested (and thereafter until the 2008 amendments to RPAPL Article 5 became effective), neither their claimed mistaken belief that they held title to it nor, conversely, their knowledge—as alleged by plaintiff—that they did not, will alone defeat their ownership of the area by adverse possession if the remaining elements of an adverse possession claim are satisfied ( Belotti v. Bickhardt , 228 NY 296[1920] ); Walling v. Przybylo , 24 AD3d 1, 4, 804 NYS2d 435 [3d Dept 2005] ). "Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity" ( Bratone v. Conforti-Brown , 79 AD3d 955, 957, 913 NYS2d 762 [2d Dept 2010], quoting United Pickle Prods. Corp. v. Prayer Temple Community Church , 43 AD3d 307, 309, 843 NYS2d 1 [1st Dept 2007] ; Estate of Becker v. Murtagh , 19 NY3d 75, 945 NYS2d 196 [2012] ; see also Megalli v. Yeager , 167 AD3d 860, 90 NYS3d 267 [2d Dept 2018] ). "Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors" ( Walling v. Przybylo , 7 NY3d at 232-233 ; see Hall v. Sinclaire , 35 AD3d 660, 663, 826 NYS2d 706 [2d Dept 2006] ).
Accordingly, the question at this juncture is whether the record as it currently exists shows that the Sgangas are likely to succeed in proving both that they "usually cultivated, improved or substantially enclosed the" disputed parcel and that their use of it was "exclusive."
Consistent with the metes and bounds description of their property contained in their October 1992 deed, a survey drawing dated October 30, 1995, which is annexed to the Sgangas' verified complaint [as Exhibit B], shows a walkway on the Sganga property lying in extremely close proximity to the northwest corner of the Casey property and leading to an irregularly-shaped, five-sided wooden deck that abuts, but does not encroach upon, the northern boundary of the Casey lot. The survey does not show any structure appurtenant to the Sgangas' lot lying within the metes and bounds of the lot that Casey subsequently acquired nor, although that same survey shows an access easement running from the northwestern quadrant of the Sganga property across a neighboring lot to Elm Street, does it show any structure or easement appurtenant to the Sganga lot situated on the Casey property. For her part, defendant Casey avers that in connection with her purchase of her home, her parcel was surveyed, with "accompanying flags and monuments put in place"—an averment that is borne out to some extent, but not unequivocally, by a pair of monuments identified on the 2017 survey she has submitted—and a copy of that, earlier survey—which also showed the recorded and surveyed boundaries of her property and revealed no encroachments onto it—was filed without eliciting any objection from the Sgangas (a copy of a survey is annexed to Casey's Verified answer with counterclaims as an exhibit)
The survey copy that is annexed to Casey's Answer and Counterclaims as Exhibit B shows no encroachments or easements onto the property. However, the exhibit bears dates that do not appear consistent with Casey's contention that the survey was undertaken in connection with her purchase of the property in the late 1990s. A more recent survey, dated August 28, 2017 and annexed to Casey's affidavit in opposition to the current motion, does show a "Wood tie Retaining Wall," labelled at each end, respectively, "Wood Tie 9.6’ Encr." and "Wood Tie 7.8’ Encr.," running south from the point where the outer, southeastern outer corner of the plaintiffs' deck abuts the northern property line of the Casey property, diagonally across the northwestern corner of the Casey property for an unmeasured distance and then, at a point 7.8 feet from the common boundary line of the two parcels turns approximately 30 degrees to the southeast and then runs to and a short, unmeasured distance across the common boundary line. According to the survey, the Casey property's total lot area is 7,452.45 square feet, or 0.17 acres. In contrast, the 1995 survey submitted by the Sgangas shows no encroachments or extensions from their lot into what is now the Casey parcel and describes the Sganga lot as having area of 20, 364 square feet.
Thus, whether the Sgangas use of the disputed parcel has been "exclusive" is a source of some contentiousness between the parties. The Sgangas' position is that they used the parcel as if it were—and believing it to be—an area of yard extending from the rear of their home, but Casey, again, avers that the Sgangas voiced no objection when, after she purchased her property, she had its deeded boundaries marked and staked—an assertion that the Sgangas voiced no objection to—and she argues that, therefor, the Sgangas' continued use of the piece of lawn should be deemed "permissive" (see generally Shandaken Refm. Church of Mount Tremper v. Leone, 87 AD2d 950, 951 [3d Dept 1982] ). Similarly, while the Sgangas now seek to characterize the wooden ties as making up a substantial "enclosure" around the disputed parcel, Casey, again, seeks to portray them as merely being in "a tiered, ornamental arrangement which creates planting beds." The distinction, although important, is not, however, dispositive:
To establish the "exclusivity" element, the adverse possessor must alone care for or improve the disputed property as if it were his or her own (see Beddoe v. Avery, 145 AD2d 818, 819, 535 N.Y.S.2d 804 [3d Dept.1988] ). The focus is on whether the party claiming title by adverse possession exercised exclusive possession and control of the property. Thus, for example, allowing others to use the property would not necessarily negate ‘exclusivity’; when the party claiming adverse possession permits others to use the property, exclusivity exists where the claimant's use of the property is "separate and exclusive from the general use’ ( Pirman v. Confer, 273 NY 357, 363, 7 N.E.2d 262 [1937] ; see Pro—Fac Co—op. v. Baltimore & Ohio R.R. Co., 36 AD2d 441, 444, 321 N.Y.S.2d 208 [4th Dept.1971] ; see also Levy v. Kurpil, 168 AD2d at 883, 564 N.Y.S.2d 556 [3d Dept 1990] [claimant's use is exclusive to the extent that although others use disputed property, claimant's use is not dependent on the right of others to do so] ). But note, "exclusivity" is not established "where [a claimant's] use is in connection with the use of the owner and the general public" ( Pirman, 273 NY at 363, 7 N.E.2d 262 ).
Estate of Becker v. Murtagh , 19 NY3d 75, 83 [2012].
Similarly, there is a factual issue as to whether the Sgangas' use of the disputed section of the Casey property has been of a kind sufficient to support their acquisition of title to it by adverse possession, that is, whether they "usually cultivated, improved or substantially enclosed the disputed parcel" ( Walsh v. Ellis , supra , 64 AD3d at 703 ; see RPAPL former § 522 ). The removal and planting of trees and shrubs, mowing of grass, and even the de minimis maintenance of a chain link fence has been held insufficient to support an adverse possession claim (see Walsh v. Ellis , 64 AD3d 702, 703-704, 883 NYS2d 563 [2d Dept 2009] ). The Sgangas concede that they have not built or installed any permanent or fixed structures or improvements on the disputed parcel, and there does not appear to be any disagreement that their rear deck and paved areas abut the shared property line but do not encroach upon the Casey property. Although they argue that the wooden ties make up a retaining wall that constitutes a "substantial enclosure" (see Generalow v. Steinberger , 131 AD2d 634, 634 [2d Dept 1987] ; cf. Palazzolo v. Malba Estates, Inc. , 118 AD2d 841, 842 [2d Dept 1986] (upholding finding of prescriptive easement in retaining wall), that characterization is disputed by Casey, who maintains that the planting beds are merely ornamental. Moreover, not only is there a factual dispute over the proper characterization and office of the wooden ties that cannot be resolved on the current record, there is also uncertainty as to whether they were put in place by the Sgangas' predecessors in interest or Casey's.
That is not the end of the inquiry, however, as "the existence of a factual dispute will not bar the imposition of a preliminary injunction if it is necessary to preserve the status quo and the party to be enjoined will suffer no great hardship as a result of its issuance" ( Melvin v. Union Coll. , 195 AD2d 447, 448 [2d Dept 1993]. See S.P.Q.R. Co., Inc. v. United Rockland Stairs, Inc. , 57 AD3d 642, 643 [2d Dept 2008], citing Kelley v. Garuda, 36 AD3d 593, 596 [2d Dept 2007] ; Stockley v. Gorelik, 24 AD3d 535 [2d Dept 2005] ; Ying Fung Moy v. Hohi Umeki, 10 AD3d 604 [2d Dept 2004] ; Mr. Natural, Inc. v. Unadulterated Food Prods., 152 AD2d 729, 730[2d Dept 1989] ; US Ice Cream Corp. v. Carvel Corp., 136 AD2d 626, 628[2d Dept 1988] ; Burmax Co. v. B & S Indus., supra, at 600). A court making this evaluation must be mindful that "[t]he purpose of a preliminary injunction is to maintain the status quo, not to determine the ultimate rights of the parties"( Majid Usman, Inc. v. Beech 140, LLC , 68 AD3d 942, 942-943, 892 NYS2d 430 [2d Dept 2009], quoting Matter of Wheaton/TMW Fourth Ave., LP v. New York City Dept. Of Bldgs. , 65 AD3d 1051, 1052, 886 NYS2d 41 [2d Dept 2009] ; see Coinmach Corp v. Alley Pond Owners Corp. , 25 AD3d 642, 643, 808 NYS2d 418 [2d Dept 2006] ).
Here, the Sgangas assert that removing the wooden ties, which they claim serve as a retaining wall, would expose their property to erosion, while Casey asserts that the Sgangas' activities have damaged her property and that she "will be compelled to install a significant retaining wall to prevent erosion and the possible collapse of the slope in the vicinity of the Wooden Ties," particularly if their activities are allowed to continue. Based upon the record presented, and taking into account the parties' respective equities, preventing the defendant, pending the outcome of this action, from removing or altering the placement and configuration of the wooden ties but not requiring the removal of the fence that she erected along the boundary between her deeded parcel and the plaintiff's would both maintain the status quo that existed in the months preceding the current litigation and strike a balance that will protect both parties from irreparable harm during the pendency of this action.
Accordingly, the plaintiffs' motion, brought on by Order to Show Cause, seeking a preliminary injunction pursuant to CPLR § 6301 is granted to the extent that defendant is enjoined from removing or otherwise altering the placement or configuration of the wooden ties that transect the northwestern corner of her parcel pending the outcome of this action, and is otherwise denied.
The foregoing constitutes the decision and Order of the Court.