Rusoff v. Engel

89 A.D.2d 587, 452 N.Y.S.2d 250, 1982 N.Y. App. Div. LEXIS 17657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1982
• Status: Published

Opinion

In an action by plaintiffs, inter alia, to be declared the owners of certain property as a consequence of their adverse possession of the property, in which appellants counterclaimed for ejectment, the appeal is from a judgment of the Supreme Court, Westchester County (Slifein, J.), dated July 22, 1981, which, after a nonjury trial, was in favor of the plaintiffs and dismissed the counterclaim. Judgment reversed, on the law, and new trial granted, with costs to abide the event. Trial Term determined that the elements of adverse possession had been established by a preponderance of the evidence. Adverse possession must be established by the more stringent and demanding standard of clear and convincing proof {Van Valkenburgh v Lutz, 304 NY 95; Gerwitz v Gelsomin, 69 AD2d 992; Whiffen v Deymark Corp., 128 NYS2d 757; see 2 NY Jur 2d, Adversé Possession, § 8). This use of an erroneous standard of proof requires reversal. In light of the sharply conflicting trial testimony and the unique position of the trial court in assessing credibility, the correct course is to send this matter back for a new trial. Damiani, J. P., Titone, Weinstein and Bracken, JJ., concur.