Surrogate Edward McCarty III
Executrix Mitchell petitioned for an order directing the respondents to remove a fence they owned. She alleged the fence encroached on property the estate owned by nearly 4.6 feet. Respondents owned the property adjacent to the subject property, and have refused to remove the fence. Mitchell entered into a contract for sale of the property, but the buyer refused to close as the title company excepted to insuring the disputed piece of land, noting the estate may be out of possession of that piece. Respondents counterclaimed for judgment of title to the land by adverse possession. The court stated replacement of the original fence with "something of like kind in the same area" did not start anew the 10 year requirement for adverse possession claims. Therefore, the court stated respondents’ use and possession of this parcel ripened into title after 10 years, vesting in 2007, before the enactment of the 2008 amendments to the Real Property Actions and Proceedings Law, which were inapplicable to respondents’ claim. The court concluded, based on the undisputed facts, respondents demonstrated the requisite elements of adverse possession, the petition was denied and respondents were awarded judgment on their counterclaim.
