CONCETTA GUARIGLIA , ET AL., APPELLANTS, v. BLIMA HOMES, INC., RESPONDENT, ET
AL., DEFENDANTS.
89 N.Y.2d 851, 675 N.E.2d 466, 652 N.Y.S.2d 731 (1996).
November 26, 1996
2 No. 252 (1996 NY Int. 304)
Decided November 26, 1996
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Joseph P. Grancio, for Appellants.
Marc Z. Newman, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
Plaintiffs sought to establish legal title by adverse possession to an
enclosed 10 feet by 40 feet strip of the parcel adjoining their
property (acquired in 1977) on its westerly border. Defendant Blima
Homes, Inc., the record holder of legal title to the entire adjoining
parcel since 1984, and its predecessors in title, are presumed to have
been possessed of the disputed strip, and plaintiffs' occupancy is
presumed to have been subordinate, not hostile, to legal title (RPAPL
311; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118,
120, appeal dismissed 58 NY2d 824).
Moreover, the October 28, l982 agreement entered into by plaintiff
Concetta Guariglia regarding acquisition of the westerly adjoining
parcel (now owned by Blima) from the State of New York and plaintiffs'
permissive use of the strip in question thereafter, constituted an
acknowledgement that actual ownership rested in others. The agreement
thus negated an essential element of plaintiffs' adverse possession
claim arising out of their occupancy of a portion of Blima's parcel
during the statutory period (Van Gorder v Masterplanned, Inc., 78
NY2d ll06, ll08; City of Tonawanda v Ellicott Cr. Homeowners Assn.,
supra, at l23). While the fatal effect of this acknowledgement upon
plaintiffs' claim could have been overcome by establishing that
plaintiffs' predecessors in interest to their property had adversely
possessed the strip for the statutory period (see, Di Leo v Pecksto
Holding Corp., 304 NY 505, 5l4; City of Tonawanda v Ellicott Cr.
Homeowners Assn., supra, at l24), plaintiffs failed to submit proof in
admissible form to substantiate that contention. Thus, summary
SNIPPETS:
AL., DEFENDANTS.
This memorandum is uncorrected and subject to revision before publication in the New York
Joseph P. Grancio, for Appellants.
Marc Z. Newman, for Respondent.
The order of the Appellate Division should be affirmed, with costs.
Plaintiffs sought to establish legal title by adverse possession to an enclosed 10 feet by 40
Defendant Blima Homes, Inc., the record holder of legal title to the entire adjoining parcel
Homeowners Assn., 86 AD2d 118, 120, appeal dismissed 58 NY2d 824).
Moreover, the October 28, l982 agreement entered into by plaintiff Concetta Guariglia
The agreement thus negated an essential element of plaintiffs' adverse possession claim
While the fatal effect of this acknowledgement upon plaintiffs' claim could have been
Homeowners Assn., supra, at l24), plaintiffs failed to submit proof in admissible form to
summary judgment dismissing their cause of action against Blima was properly granted.
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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