Rose v. County of Nassau

Opinion

Rose v County of Nassau

2026 NY Slip Op 04969

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Jason Rose, et al., respondents,

v

County of Nassau, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-13340, (Index No. 616834/22)

Betsy Barros, J.P.

Helen Voutsinas

Donna-Marie E. Golia

Phillip Hom, JJ.

Bond, Schoeneck & King PLLC, Melville, NY (Richard S. Finkel and Samantha A. Knice of counsel), for appellant.

McLoughlin & Stern, LLP, Garden City, NY (Christian Browne of counsel), for respondents.

[*1]

DECISION & ORDER

In an action for a judgment declaring that the plaintiffs are the owners of certain real property by adverse possession, the defendant appeals from an order of the Supreme Court, Nassau County (Dawn Jimenez, J.), entered October 9, 2024. The order, insofar as appealed from, granted that branch of the plaintiffs' motion which was for summary judgment declaring that the plaintiffs are the owners of the subject real property by adverse possession and denied the defendant's cross-motion for summary judgment, in effect, declaring that the plaintiffs are not the owners of the subject real property parcel by adverse possession.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiffs' motion which was for summary judgment declaring that the plaintiffs are the owners of the subject real property by adverse possession is denied, the defendant's cross-motion for summary judgment, in effect, declaring that the plaintiffs are not the owners of the subject real property by adverse possession is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, making the appropriate declaration in accordance herewith.

In 2005, the plaintiffs purchased a house located in Woodmere. The rear of the plaintiffs' property abutted certain real property owned by the defendant, the County of Nassau. The County's property consisted of a strip of grass and open space abutting a body of water known as Motts Creek.

Shortly after purchasing their property in 2005, the plaintiffs replaced a broken fence to the rear of their property with a new fence. In 2014, when the plaintiffs claim they first had a survey of their property conducted, the plaintiffs realized that the new fence was on County property and enclosed approximately 900 square feet thereof (hereinafter the disputed parcel).

In 2022, the plaintiffs commenced this action for a judgment declaring that the plaintiffs are the owners of the disputed parcel by adverse possession. Following the completion of discovery, the plaintiffs moved, inter alia, for summary judgment declaring that the plaintiffs are the owners of the disputed parcel by adverse possession. The County cross-moved for summary [*2]judgment, in effect, declaring that the plaintiffs are not the owners of the disputed parcel by adverse possession. In an order entered October 9, 2024, the Supreme Court, among other things, granted that branch of the plaintiffs' motion and denied the County's cross-motion. The County appeals.

"To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period" (Leong v Larroca Finest Home Design, LLC, 241 AD3d 1447, 1448 [internal quotation marks omitted]; see Estate of Becker v Murtagh, 19 NY3d 75, 81). "In 2008, the Legislature amended the adverse possession statute to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights" (Leong v Larroca Finest Home Design, LLC, 241 AD3d at 1448 [internal quotation marks omitted]; see L 2008, ch 269). "These amendments included the following statutory definition of the 'claim of right' element: 'a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be'" (Diaz v Mai Jin Yang, 148 AD3d 672, 673, quoting RPAPL 501[3]).

"A party claiming adverse possession may establish possession for the statutory period by 'tacking' the time that the party possessed the property onto the time that the party's predecessor adversely possessed the property" (id. at 674 [internal quotation marks omitted]; see Munroe v Cheyenne Realty, LLC, 131 AD3d 1141, 1142). In order for tacking to be applicable, a party must show that the party's predecessor "intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed" (Brand v Prince, 35 NY2d 634, 637; see Diaz v Mai Jin Yang, 148 AD3d at 674). There is no indication that that was the case here.

Here, on its cross-motion for summary judgment, the County established, prima facie, that the plaintiffs did not acquire title to the disputed parcel by adverse possession by demonstrating that the plaintiffs' use of the disputed parcel was not under a claim of right, as the plaintiffs were aware since at least 2014 that the disputed parcel was not included within the boundary lines of their property and, consequently, did not belong to them (see RPAPL 501[3]; Leong v Larroca Finest Home Design, LLC, 241 AD3d at 1449). The County also established, prima facie, that the plaintiffs' use of the disputed parcel was permissive (see Diaz v Mai Jin Yang, 148 AD3d at 674).

In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the 10-year period could be satisfied by tacking on the periods of adverse possession or use by their predecessors (see Munroe v Cheyenne Realty, LLC, 131 AD3d at 1142) and whether they had a reasonable basis to believe that the disputed parcel belonged to them (see Diaz v Mai Jin Yang, 148 AD3d at 673).

Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motion which was for summary judgment declaring that the plaintiffs are the owners of the disputed parcel by adverse possession and granted the County's cross-motion for summary judgment, in effect, declaring that the plaintiffs are not the owners of the disputed parcel by adverse possession.

The parties' remaining contentions need not be reached in light of our determination.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiffs are not the owners of the disputed parcel by adverse possession (see Lanza v Wagner, 11 NY2d 317, 334; Leong v Larroca Finest Home Design, LLC, 241 AD3d at 1449).

BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court