Silvio Management Corp. v. Russo

Appellate Division of the Supreme Court of New York

Silvio Management Corp. v. Russo

271 A.D.2d 520, 706 N.Y.S.2d 351, 2000 N.Y. App. Div. LEXIS 4056

Appellate Division of the Supreme Court of the State of New York·Decided April 10, 2000·Published

Opinion

—In an action, inter alia, to acquire title to real property by adverse possession or for a judgment declaring that the plaintiff has a prescriptive easement over the property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Cowhey, J.), entered January 22, 1999, which, after a nonjury trial, inter alia, dismissed the complaint.

Ordered that the order is affirmed, with costs.

A party seeking to acquire title by adverse possession must establish, by clear and convincing evidence, that the possession of the parcel was hostile, under a claim of right, actual, open, notorious, and exclusive, and continuous for a period of 10 years or more (see, Brand v Prince, 35 NY2d 634; Halley v Winnicki, 255 AD2d 489; Manhattan School of Music v Solow, 175 AD2d 106; CPLR 212). The plaintiff failed to establish these elements by clear and convincing evidence, and thus, its claim of adverse possession must fail. Moreover, an easement by prescription was not made out (see, Di Leo v Pecksto Holding Corp., 304 NY 505, 510-512; see also, Brocco v Mileo, 144 AD2d 200, 201).

The plaintiffs remaining contentions are without merit. Thompson, J. P., S. Miller, Florio and Schmidt, JJ., concur.

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—In an action, inter alia, to acquire title to real property by adverse possession or for a judgment declaring that the plaintiff has a prescriptive easement over the property, the plaintiff appeals from an order of the Supreme Court, Westchester County (Cowhey, J.), entered January 22, 1999, which, after a nonjury trial, inter alia, dismissed the complaint.

Ordered that the order is affirmed, with costs.

A party seeking to acquire title by adverse possession must establish, by clear and convincing evidence, that the possession of the parcel was hostile, under a claim of right, actual, open, notorious, and exclusive, and continuous for a period of 10 years or more (see, Brand v Prince, 35 NY2d 634; Halley v Winnicki, 255 AD2d 489; Manhattan School of Music v Solow, 175 AD2d 106; CPLR 212). The plaintiff failed to establish these elements by clear and convincing evidence, and thus, its claim of adverse possession must fail. Moreover, an easement by prescription was not made out (see, Di Leo v Pecksto Holding Corp., 304 NY 505, 510-512; see also, Brocco v Mileo, 144 AD2d 200, 201).

The plaintiffs remaining contentions are without merit. Thompson, J. P., S. Miller, Florio and Schmidt, JJ., concur.

Silvio Management Corp. v. Russo, 271 A.D.2d 520, 706 N.Y.S.2d 351, 2000 N.Y. App. Div. LEXIS 4056 (N.Y. Ct. App. 2000).

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Opinion

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