Harlem Commonwealth Council, Inc. v. Thomas Memorial Wesleyan Methodist Church

10 A.D.3d 572, 782 N.Y.S.2d 83, 2004 N.Y. App. Div. LEXIS 11010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2004
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Walter B. Tolub, J), entered February 2, 2004, which, inter alia, upon the grant of defendant’s motion for summary judgment, declared that defendant adversely possessed the subject easement, unanimously affirmed, without costs.

The record establishes that defendant has continuously, exclusively, openly and notoriously occupied the property encompassed by the easement for a period in excess of 10 years, dating at least to the late 1980s, in a manner hostile and adverse to plaintiffs interests. Defendant’s reconstruction and continuous maintenance of the fence impeding access to the property, its consistent refusals to allow unimpeded access during the later 1980s, and its removal of a fence on the property constructed by plaintiff all manifested the requisite element of hostile possession (see Spiegel v Ferraro, 73 NY2d 622 [1989]). Defendant’s claim of right is demonstrated by these same facts (see Moore v City of Saratoga Springs, 296 AD2d 707, 709-710 [2002]; Gerlach v Russo Realty Corp., 264 AD2d 756, 757 [1999]), which also contradict any claim of permissive use in connection with the original fence (cf. Shandaken Reformed Church of Mount Tremper v Leone, 87 AD2d 950 [1982], lv denied 57 NY2d 602 [1982]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur—Tom, J.P., Sullivan, Williams, Friedman and Marlow, JJ.