Penn Heights Beach Club, Inc. v. Myers

42 A.D.3d 602, 839 N.Y.S.2d 570
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 5, 2007
StatusPublished
Cited by12 cases

This text of 42 A.D.3d 602 (Penn Heights Beach Club, Inc. v. Myers) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Penn Heights Beach Club, Inc. v. Myers, 42 A.D.3d 602, 839 N.Y.S.2d 570 (N.Y. Ct. App. 2007).

Opinion

Cardona, P.J.

Cross appeals from an order of the Supreme Court (Ferradino, J.), entered May 25, 2006 in Saratoga County, which, inter alia, denied plaintiffs motion for summary judgment.

In 1955, Roger Zanella filed a subdivision map that partitioned a large tract of land he owned in the Town of Edinburg, Saratoga County into 47 individual lots. The map also set forth certain internal roadways giving the lot owners access to Route 4 and the shore of the Sacandaga Reservoir. Thereafter, while Zanella retained title to the internal roadways, he sold the individual lots with deeds granting the new owners easements in common with the other grantees over the internal roadways. By deed recorded July 12, 1965, Zanella conveyed to Edward Ashcroft and Joan Ashcroft title to all of the internal roadways except one referred to as the “Access Road.” Subsequently, in a deed recorded on September 23, 1966, Zanella conveyed certain property, including the Access Road, to Harry Schuh and Dorothy Schuh.

Nevertheless, the record indicates that, despite the fact that the Ashcrofts’ 1965 deed did not include the Access Road, they believed that they also owned that road, along with the other internal roads, due to, among other things, certain inaccurate or confusing information in their tax assessment. After the Ashcrofts’ property became tax delinquent in 1985, plaintiff, a corporation whose members consisted of the owners of approximately 40 of the lots in the Zanella subdivision, expressed an interest in purchasing all of the internal roads. It was agreed that the Ashcrofts would redeem the property from foreclosure and convey title to the internal roads to plaintiff. However, [604]*604upon inspection of the Ashcrofts’ deed, plaintiff discovered that the Access Road was not included. The Ashcrofts thereafter contacted Zanella, who, by deed recorded May 29, 1986, purported to formally convey the Access Road to them, despite having previously conveyed it to the Schuhs. In November 1986, the Ashcrofts deeded to plaintiff, among other things, title to all the internal roads, including the Access Road.

In 2000, Harry Schuh passed away and his widow, Dorothy, conveyed certain property in the subdivision, including the Access Road, to defendant Nancy Myers. After difficulties developed between Myers and the other lot owners concerning use of the Access Road, plaintiff commenced this action seeking, among other things, a declaration in its favor against Myers stating that it acquired title to the Access Road by adverse possession. Plaintiff also sought a declaration establishing that it acquired a prescriptive easement over that part of the altered1 Access Road that traverses property owned by Myers and defendant Richard H. Berger. In her answer, Myers interposed counterclaims seeking declarations that she has fee title to the Access Road and that the 1986 deeds purporting to grant title to plaintiff were void. Thereafter, plaintiff moved for summary judgment against Myers and Berger, while Myers cross-moved for summary judgment dismissing the complaint and granting her counterclaims.

Supreme Court denied plaintiffs motion for summary judgment, granted Myers’ motion for summary judgment dismissing two of plaintiffs four causes of action, i.e., the adverse possession and prescriptive easement claims, and canceled the 1986 Zanella-to-Ashcrofts and Ashcrofts-to-plaintiff deeds in their entirety. The court further held that plaintiff did not acquire an easement by prescription over Berger’s property. Plaintiff now appeals and Myers cross-appeals.2

Initially, we are unpersuaded by plaintiffs contention that it acquired fee title to the Access Road by adverse possession because it repaired and maintained the Access Road, paid [605]*605certain taxes thereon and its members used the Access Road for access to their respective lots and the lake. In reaching this conclusion, we are mindful that plaintiff objects to Supreme Court’s preliminary ruling that, because plaintiff appeared only as a corporate entity in the caption of its second amended complaint and did not affirmatively indicate that it was also suing in a representative capacity on behalf of its members, the court could only adjudicate the rights of plaintiff in its corporate capacity. Plaintiff argues that, when it commenced the instant action, it was acting on its members’ behalf because its corporate purpose is to promote and protect their collective interests. Assuming arguendo that plaintiff’s contention is meritorious, we nevertheless conclude that it failed to establish entitlement to the Access Road by adverse possession.

Specifically, plaintiff is asserting title by adverse possession under a “claim of title not written” (RPAPL 521) as well as pursuant to a “written instrument or judgment” (RPAPL 512). Significantly, along with proving the statutory requirements pursuant to either theory, a party must also demonstrate by clear and convincing evidence the common-law elements that “the character of the possession is ‘hostile and under a claim of right, actual, open and notorious, exclusive and continuous’ for the statutory period of 10 years” (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996], quoting Brand v Prince, 35 NY2d 634, 636 [1974] [citation omitted]; see Joseph v Whitcombe, 279 AD2d 122, 125-126 [2001]; see also RPAPL 501). Notably, “ ‘[t]he ultimate element in the rise of a title through adverse possession is the acquiescence of the real owner in the exercise of an obvious adverse or hostile ownership through the statutory period’ ” (Walling v Przybylo, 7 NY3d 228, 232 [2006], quoting Monnot v Murphy, 207 NY 240, 245 [1913]).

Here, Supreme Court properly found that plaintiff’s proof was deficient with respect to, among other things, the specific requirement of hostility. In its absence, an adverse possession claim cannot be sustained. Significantly, plaintiff concedes that its members, along with other lot owners in the subdivision, have commonly-held express easement rights over the Access Road, and that its own purpose as a corporate entity is “to promote the interests of its members,” namely, paying for the maintenance and repair of the members’ commonly-held easements. Given the existence of these easements and, inasmuch as there was no agreement to the contrary, the individual lot owners and plaintiff’s members had the responsibility of maintaining and repairing the Access Road for their enjoyment and use of the commonly-held easements (see Tagle v Jakob, [606]*606275 AD2d 573, 574 [2000], affd on other grounds 97 NY2d 165 [2001]). Thus, these actions were not adverse to the servient property owners, especially since the fee interest was subject to those easement rights and the owners had a duty to refrain from interfering with the use of the easement (see id.).

Nevertheless, plaintiff maintains that the element of hostility was established by the proof in the record. We note, however, plaintiffs conduct in paying taxes on the Access Road, without more, is insufficient to establish adverse possession (see Kitchen v Village of Sherburne, 266 AD2d 786, 788 [1999]). Nor is it sufficient that, several years prior to the time that plaintiff purported to purchase the Access Road from the Ashcrofts, the Schuhs were refused membership in plaintiffs organization as well as admittance onto the beachfront for their prospective tenants.

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Cite This Page — Counsel Stack

Bluebook (online)
42 A.D.3d 602, 839 N.Y.S.2d 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-heights-beach-club-inc-v-myers-nyappdiv-2007.