John Peruso Construction Co. v. Nick

222 A.D.2d 655, 636 N.Y.S.2d 91, 1995 N.Y. App. Div. LEXIS 13955

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1995
• Status: Published

Opinion

—In an action for money damages based on the destruction of two walnut trees, in which the defendants counterclaimed seeking a declaration that the trees were located on property owned by them, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Owen, J.), entered February 21, 1995, which, upon the granting of the defendants’ motion for summary judgment, (1) was in favor of the defendants and against it, (2) dismissed the complaint, and (3) declared that the defendants were the owners in fee simple absolute of the disputed property.

Ordered that the judgment is affirmed, with costs.

We agree with the Supreme Court that the defendants’ submissions established that between 1967 and 1987 they exclusively, and under a claim of right, possessed all the land upon which the two walnut trees in question were located. These two trees were located on the defendants’ side of an established fence which the defendants honestly believed reflected the boundary of their property. The defendant Joseph Nick maintained this area, and pruned the subject trees, during this 20-year period. The defendants demonstrated all of the remaining elements of proof required to establish their entitlement to ownership by adverse possession, and the plaintiff failed, in its submissions, to demonstrate the existence of a material issue of fact (see, e.g., Morris v DeSantis, 178 AD2d 515; Bassett v Nicholls, 26 AD2d 569). Thompson, J. P., Altman, Friedmann and Goldstein, JJ., concur.