Upon the following papers read on this motion for summary judgment: Notice of Motion and supporting papers 1-7, Answering affidavit and supporting papers 8-11, and Replying affirmation and supporting papers 12-13; it is ORDERED, that the petitioner’s motion for summary judgment to quiet title to Lindenhurst property by adverse possession is granted. Background The following facts are not materially in dispute. The petitioner, Thomas Wyly, is the administrator of the Estate of Ann F. Wyly, his mother. The decedent in the above captioned matter was Ann’s aunt. The decedent immigrated to the United States from Poland in the early 1900′s. The decedent married Thomas Pagliaro and purchased two adjacent lots located at 303 Linton Avenue and 311 Linton Avenue, Lindenhurst, New York (Lindenhurst property). She lived with her husband at the Lindenhurst property until her husband’s death in 1959. The decedent continued to live at the property until she died on December 11, 1978. The decedent died intestate with no children. The title of the Lindenhurst property remains in the name of the decedent. After decedent’s husband died, Ann visited decedent more frequently to take her shopping, to medical appointments, and helped her with personal care and in maintaining the Lindenhurst property. Petitioner and his brothers also visited the decedent as children and teenagers and never saw or heard of any other relatives visiting her except their maternal grandmother, Katarzyna Lezanski (Ann’s mother). As such, petitioner believed that the members of his family were decedent’s only surviving relatives. After decedent died in 1978, for approximately 26 years, petitioner’s parents, Ann and Theodore, paid all the expenses and maintenance costs relating to the Lindenhurst property until Ann passed away on October 6, 2004. Petitioner’s brother, Robert, then assumed payment of the expenses and maintenance of the Lindenhurst property, including, but not limited to, paying property taxes, and hiring landscapers. After Robert was seriously injured in a car accident he moved into petitioner’s home in Massachusetts. Consequently, he was unable to visit the Lindenhurst property as often as he did when he was living in New York. However, Robert continued to pay the expenses of the Lindenhurst property until his death on March 1, 2015, which was shortly after moving to Massachusetts. Neither Ann nor Robert had a will. Petitioner and his brother, James, then decided to sell the Lindenhurst property. It was at that time, petitioner discovered that the property was still titled in the name of decedent. As a result, petitioner filed a petition for letters of administration for Frances Pagliaro’s estate. In connection with his petition, Thomas hired a genealogist to prepare the decedent’s family tree. The genealogical report took approximately three years to complete as it involved extensive research for descendants both in the United States and Poland. The report revealed that the decedent had five other siblings in Poland when she immigrated to the United States. The report also revealed that decedent was survived by nephews, nieces, grandnieces, grandnephews, a great-grandniece and a great-grandnephew. Respondent, decedent’s great-grandnephew, was the only person who appeared in the administration proceeding and expressed a willingness to serve as the fiduciary. As a result, the court issued letters of administration to respondent on January 9, 2020. While the report was pending, petitioner paid the expenses and costs of maintaining the Lindenhurst property. In addition, he hired an attorney to remove squatters who destroyed the property during Robert’s stay in Massachusetts, even though the question of the property’s ownership had not been resolved. Arguments Petitioner moves for summary judgment pursuant to CPLR 3212 to quiet title to the Lindenhurst property by adverse possession. The petitioner has submitted affidavits in support of his motion stating that his family, beginning with his parents, had maintained and possessed the Lindenhurst property for more than 40 years and that the possession was continuous, exclusive, open, notorious, hostile and under a claim of right. In support of his application, the petitioner asserts that his family had always believed that the decedent had given the Lindenhurst property to Ann and they had treated it as their own. In his affidavit, the petitioner states that he had heard decedent stating that it was her wish that Ann gets the Lindenhurst property after decedent died. After the death of decedent, Ann undertook numerous acts that were consistent with that of a property owner, including paying the taxes and expenses of the property and arranging for landscaping services and snow removal from 1978 until her death in 2004, a total of 26 years. Petitioner asserts that the tax records from the Suffolk County Comptroller support his claim that Ann had been paying the property taxes from 1985 through 2004. Further, after Ann’s death, Robert assumed payment of the expenses and taxes related to the Lindenhurst property for the next 11 years. Additionally, petitioner hired an attorney after receiving complaints from the town about the deteriorating conditions of the Lindenhurst property and successfully removed squatters that occupied the property after Robert moved to Massachusetts. In opposing the motion, respondent argues that given the familiar relationship between decedent and petitioner’s family, as well as the support the Wyle family provided to the decedent, the possession was not hostile. Respondent further asserts that the 20 year statutory period for a co-tenancy by adverse possession is applicable to this case, not the 10 year statute of limitation as petitioner contends. Respondent argues that since decedent died without a will, the Lindenhurst property passed to decedent’s sister Katarzyna and their other five siblings as tenants in common under the laws of intestacy. After the passing of Katarzyna, her share of the property vested in Ann who then became a tenant in common with the other heirs of decedent. Respondent further argues that the 20 year statutory period of continuous occupancy by Ann and her family restarts with the passing of each of the decedent’s heirs. Essentially, he argues that Ann was a tenant in common with various heirs of decedent at different times as the interests of the property passed to the heirs of each successive co-tenant who passed away. As such, petitioner has not met his burden of continuous possession for the statutory period. Discussion The party moving for summary judgment 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 Hospital, 68 NY2d 320; see also Matter of Pollock, 64 NY2d 1156). Failure to make out a prima facie case requires a denial of the motion regardless of the sufficiency of opposing papers (Winegarad v. NYU Medical Center, 64 NY2d 851). Once the movant meets his burden, the burden of going forward shifts to the opposing party to produce evidentiary proof in admissible form to establish the existence of material issues of fact requiring a trial (see Romano v. St. Vincent’s Medical Center, 178 AD2d 467, see also Friends of Animals, Inc., v. Associated Fur Manufactures Inc., 46 NY2d 1065). Petitioner seeking to obtain title by adverse possession pursuant to Real Property Actions and Proceedings Law (RPAPL) §501 must establish by clear and convincing evidence that his possession was (1) actual, (2) open and notorious, (3) exclusive, (4) continuous for the statutory period of 10 years and (5) hostile and under claim of right (Speziale v. Grabeklis, 303 AD2d 746). Permissive use negates the element of hostility required for adverse possession (see Air Stream Corp., supra). Possession is hostile when it constitutes “an actual invasion of or infringement upon the owner’s rights” (Sinicropi v. Town of Indian Lake, 148 AD2d 799). However, hostile possession “does not require a showing of enmity or specific acts of hostility” (Katona v. Low, 226 AD2d 433, 434). “Hostility can be inferred simply from the existence of the remaining four elements,” open, notorious, exclusive and continuous for the full 10 year statutory period (Matter of Clanton, 153 AD3d 787). All that is required is a showing that the petitioner’s possession and the use of the property was under a claim of right (see Estate of Becker v. Murtagh, 19 NY3d 75). “By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner” (Walling v. Przybylo, 7 NY3d 228, 232). Ann’s dominion and control over the property coupled with her paying the taxes and expenses of the property constitute an actual invasion or infringement of the rights of respondent and the absent heirs and thus, hostile to their rights as owners (see Ziegler v. Serrano, 74 AD3d 1610). She, and subsequently Robert, have continuously possessed the property and otherwise used it as owners for over 40 years, unlike respondent and the other heirs who have not paid or maintained the property. In fact, they did not make any claims to, nor have they been involved with, the Lindenhurst property during the entire period of time that petitioner and his family were in possession of the property. Their involvement with the property only arose after underlying administration proceeding was commenced. With petitioner having made a prima facie showing that the property was acquired by adverse possession, the burden shifts to respondent to produce evidence rebutting the presumption of adversity (Air Stream Corp. v. 3300 Lawson Corp., 99 AD3d 822). Respondent has failed to come forward with evidence in admissible form sufficient to rebut petitioner’s claim of adverse possession. Respondent’s opposition consists only of conclusory statements that the possession was not hostile. While permission to possess the property negates an adverse possession claim, respondent has not presented competent evidence that the absent heirs gave Ann and petitioner’s family permission to use the property. Further, respondent has not produced any evidence that he had any involvement with the Lindenhurst property during those years that petitioner and his family had maintained and paid the expenses of the property. By claiming that petitioner and his family “assumed ownership” of the property “in an illegal matter inconsistent with New York State Law,” respondent is essentially acknowledging that petitioner and his family had occupied the property exclusively and that their occupation was hostile to the interests of the decedent’s absent heirs. The court further finds respondent’s assertion that the co-tenancy 20 year statutory period that is applicable to Ann’s possession is without merit. First, respondent has not established that Ann was a co-tenant with decedent’s absent heirs. Second, even if the court were to apply the 20 year statutory period, she had met this requirement as her possession of the Lindenhurst property lasted for over 25 years, namely from 1978 to 2014. Additionally, the court finds respondent’s contention that the statutory period restarts with each passing heir is also without merit. The changing of the ownership of the tenants in common does not negate the fact that Ann and subsequently Robert had possessed the property and that their possession and use of the property was exclusive, continuous and under a claim of right adverse to the interests of the absent heirs. With respondent having failed to raise a triable issue of fact, petitioner is entitled to summary judgment to quiet title to the Lindenhurst property by adverse possession. Having determined that Ann has acquired title by adverse possession, it is not necessary to determine whether Robert acquired title by adverse possession and whether petitioner had satisfied the good faith basis requirement in the 2008 amendment of RPAPL §501. In the amendment, the legislature defines “under claim of right” as a “reasonable basis for the belief that the property belongs to the adverse possessor.” The change to RPAPL §501 does not apply retroactively. Thus, the amendment is not applicable to Ann’s possession where the alleged adverse possessor’s property right vested prior to the amendment (see Hogan v. Kelly, 86 AD3d 590). Accordingly, it is further ORDERED, that Estate of Ann F. Wyly is vested with 100 percent of the ownership of the Lindenhurst property; and it is further ORDERED, that anything not specifically granted herein is hereby denied. Dated: March 18, 2021
