Klein v. Lowy

265 A.D.2d 380, 697 N.Y.S.2d 80, 1999 N.Y. App. Div. LEXIS 10269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 12, 1999
• Status: Published

Opinion

—In an action for ejectment, the defendants appeal (1) from an order of the Supreme Court, Kings County (Dowd, J.), dated July 22, 1998, which, inter alia, granted the plaintiffs’ motion for summary judgment and directed them to deliver possession of the subject real property to the plaintiffs, and (2) from so much of an order of the same court, dated October 7, 1998, as denied that branch of their motion which was for renewal of the prior motion.

Ordered that the order dated July 22, 1998, is affirmed; and it is further,

Ordered that the order dated October 7, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the plaintiffs are awarded one bill of costs.

The plaintiffs made out a prima facie case for summary judgment and the defendants failed to demonstrate the existence of any material issues of fact in support of their counterclaim for adverse possession (see, Ley v Innes, 149 AD2d 366). “When, as here, permission can be implied from the beginning, adverse possession will not arise until there is a distinct assertion of a right hostile to the owner” (Congregation Yetev Lev D’Satmar v 26 Adar N.B. Corp., 192 AD2d 501, 503). Here, the hostile act occurred when the defendants ceased paying rent in or about December 1995. Thus, the defendants are unable to prove the element of hostility for the requisite time period (see, RPAPL 531; Risi v Interboro Indus. Parks, 99 AD2d 466).

The defendants’ remaining contentions are without merit. Joy, J. P., Friedmann, Schmidt and Smith, JJ., concur.