|Masucci v Deluca|
|2010 NY Slip Op 52246(U) [30 Misc 3d 1202(A)]|
|Decided on December 22, 2010|
|Supreme Court, Richmond County|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
Robert Masucci and Kelly Masucci, Plaintiff(s),
Robert A. Deluca and Kimberly A. Deluca, Defendant(s).
On or about August 7, 2007, the plaintiffs commenced this action against the defendants claiming they unlawfully entered the plaintiff's premises, replaced a storm water pipe and caused damage in the form of trespass, property damage and decreased value of the property. Defendants interposed an amended answer on or about June 12, 2009. Discovery is currently completed and the defendants are now moving for summary judgment as a matter of law seeking dismissal of the plaintiff's complaint, contending that no questions of fact exist, and for summary judgment on their counterclaim which seeks, inter alia, title of the property by adverse possession.
It is undisputed that the plaintiffs and defendants are neighboring homeowners. Plaintiffs, Robert and Kelly Masucci, own the property located at 61 Direnzo Court, Staten Island, New York, and defendants, Robert and Kimberly Deluca, own the property located at 78 Johanna Lane, Staten Island, New York. In the middle of both properties is a small tract of land [*2]approximately 22 feet wide and 100 feet long, which is the subject of this lawsuit (hereinafter referred to as "the subject property"). The Court notes that defendants, who purchased their property in 2003, are members of the Johanna Lane Homeowners Association (hereinafter "the Association"), whereas the plaintiffs are not.
The crux of this case involves a pipe underneath the subject property which is designed to drain water from the defendant's property into the New York State wetlands, located behind their home. Again, it is undisputed that the homeowners association placed the original pipe beneath the subject property to prevent flooding to the defendant's home. In or about 2006, the defendants property began to flood excessively, which was a result of the pipe becoming cracked. The defendants first approached the Association, which indicated it could not replace the pipe because it didn't possess the financial means, and then approached the plaintiffs to notify them of the flooding and plans for remediation. Ultimately the pipe was replaced at the cost of the defendants.
Presently, the plaintiffs contend that they own the subject property and the remediation procedures by defendants caused damage in the form of trespass, property damage and decreased value of their home. The defendants state that they did not cause any damage and have brought a counterclaim seeking, inter alia, title to the property by adverse possession.
It is well settled that a "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 ). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 ). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006], quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).
With respect to summary judgment on the plaintiff's complaint, the defendants have established their entitlement as a matter of law (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 ). The defendants have presented evidence, in the form of numerous affidavits[FN1], which establish that they have maintained and repaired the subject property for years, as did the prior owners. In fact, the evidence provided indicates that defendants installed sprinkler systems, trimmed trees, removed garbage and landscaped the subject property for years prior to the instant [*3]action. The evidence also suggests that the defendants notified the plaintiffs of their intention to replace the pipe and return the property to its original state. Further, testimony of the plaintiffs indicates that the subject property was restored to a "prettier" nature than prior to the work being performed.
In opposition, the plaintiffs have failed to raise any triable issues of fact (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006]). The plaintiffs have failed to present any disputed facts in opposition to the defendants papers. Instead, plaintiffs attempt to raise feigned issues including, inter alia, whether (1) the pipe was replaced, (2) the defendants are members of the homeowners association, and (3) why the Deluca's did not commence a third-party action against the Association. None of the aforementioned statements are issues of fact. The defendants do not dispute they replaced the pipe; have presented sufficient evidence to establish they are members of the Association and the commencement, or lack thereof, of a third-party action is not an issue of fact for this Court.
Further, the plaintiffs have failed to present any evidence in support of their claims. There has been no evidence of trespass, no documentation or proof of monetary damages to the subject property or proof that the replacement of the pipe caused diminution in the value of the plaintiff's property. As a result, the defendant's are entitled to summary judgment dismissing the complaint against them in its entirety.
With respect to the defendant's counter-claims seeking title to the subject property by adverse
possession, it is well settled that
[a] party seeking to obtain title to real property by adverse possession not based upon a written instrument must establish that the property was either usually cultivated or improved' or protected by a substantial inclosure'. In addition, the party must demonstrate, by clear and convincing evidence, the common-law requirements of adverse possession: (1) that the possession was hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (DeRosa v. DeRosa, 58 AD3d 794, 795 [2d Dept., 2009]; Almedia v. Wells, 74 AD3d 1256, 1258 [2d Dept., 2010]; Hall v. Sinclaire, 35 AD3d 660, 662 [2d Dept., 2006]).
When "[r]educed to its essentials, the required common-law elements mean nothing more than that there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period'" (Conklin-Penwell v. Riverhead Lodge, 61 AD3d 916, 916 [2d Dept., 2009]).
Here, the defendants have presented evidence that they cultivated and improved' the subject property by maintaining and providing any necessary repairs, as did their predecessors-in-interest. In addition, the affidavits provide evidence that the prior owners intended to transfer title to the subject property when they sold the home to the defendants. Defendants also submitted evidence of the common-law requirements of adverse possession, including their open and notorious possession and continuous maintenance.
However, in opposition, the plaintiff's have raised questions of fact regarding whether the land was deeded to them in March 1999 and whether they maintained the property. Considering the ramifications of adverse possession and the questions of fact surrounding which party owned the property, this Court will schedule a conference for [*4]January 26, 2011, at 9:30 a.m., to set a date for a hearing.
Accordingly, it is hereby
ORDERED that the portion of the defendant's motion seeking summary judgment on the plaintiff's claims is hereby granted, and it is further
ORDERED that the plaintiff's complaint is hereby dismissed in its entirety, and it is further
ORDERED that the portion of the defendant's motion requesting summary judgment on their counter-claim of adverse possession is hereby denied, and it is further
ORDERED that the attorneys are directed to appear for a conference on January 26, 2011, at 9:30 a.m., and it is hereby
ORDERED that any and all further requests for relief are hereby denied, and it is further
ORDERED that the Clerk enter Judgment accordingly.
Dated: December 22, 2010E N T E R,
Hon. Judith N. McMahon
Justice of the Supreme Court