Perez v. Perez

186 A.D.2d 376

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1992
• Status: Published

Opinion

— Order, Supreme Court, Bronx County (Anita Florio, J.), entered September 12, 1991, which denied plaintiff’s motion for summary judgment dismissing defendant’s answer, counterclaims, and for an order of reference, and denied defendant’s cross-motion for summary judgment, unanimously affirmed, without costs.

Defendant failed to establish adverse possession of the parties’ former marital property by clear and convincing proof (Rusoff v Engel, 89 AD2d 587). While it appears that defendant actually occupied the property in an open, notorious, exclusive and continuous manner for a period in excess of ten years, there is a sharp issue of fact as to whether his possession was hostile and under a claim of right (see, Brand v Prince, 35 NY2d 634, 636). Though a former spouse can hold real property adversely after a divorce (2 Carmody-Wait 2d, NY Prac § 13:67), plaintiff’s present claim that she was not ousted and that she presumed defendant was holding possession with full recognition of her rights is not necessarily contradictory to her statements regarding actions taken during a bitter matrimonial dispute. Thus, the court properly found the existence of issues of fact sufficient to preclude the grant of summary judgment to either party. Concur — Ellerin, J. P., Wallach, Ross and Kassal, JJ.