Reischer v. Vusanjan

250 A.D.2d 748, 672 N.Y.S.2d 252, 1998 N.Y. App. Div. LEXIS 5810

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1998
• Status: Published

Opinion

—In an action, inter alia, for a judgment declaring the parties’ rights to possession and title of a disputed parcel of real property, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Posner, J.), dated July 18, 1997, as, in effect, denied her motion for summary judgment, inter alia, declaring her to be the sole owner of the disputed parcel.

Ordered that the order is affirmed insofar as appealed, with costs.

The plaintiff and the defendant own neighboring properties in Queens. A triangular wedge of land allegedly owned by the plaintiff is cut off from the remainder of her lot by a fence that has for many years been regarded as marking the property line. The defendant claims to own the disputed wedge by adverse possession.

Contrary to the plaintiffs contentions, the Supreme Court correctly concluded that issues of fact exist as to whether the defendant’s possession of the disputed parcel is hostile or permissive pursuant to an agreement by prior owners of the respective properties (see, MAG Assocs. v SDR Realty, 247 AD2d 516; Young v Saniski, 198 AD2d 704).

We have reviewed the plaintiffs remaining contentions and find them to be without merit.

We note that we have not considered the arguments the defendant has improperly raised for the first time on appeal. Rosenblatt, J. P., Miller, Thompson and Santucci, JJ., concur.