You are here: / / DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY...

DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY GRANTED, ELEMENTS OF PRE-AMENDMENT PROOF OF A CLAIM OF RIGHT APPLIED TO THE DISPUTED PROPERTY (SECOND DEPT).

he Second Department, after explaining the current law of adverse possession and finding that the prior (pre-amendment) law applied in this case, determined the defendant’s (Dominici’s) counterclaim seeking adverse possession of disputed property was properly dismissed:

… [T]he 2008 amendments to the adverse possession statutes contained in RPAPL article 5 (see id.) are not applicable where, as here, the alleged adverse possessor’s property right, as alleged, vested prior to the enactment of those amendments … . …

On October 1, 2012, the plaintiff became the titled owner of the property located at 541 Middle Country Road in Coram (hereinafter the 541 Property), which is adjacent to the property located at 543 Middle Country Road in Coram (hereinafter the 543 Property). The plaintiff had a survey taken on January 7, 2014, which showed that the owner of the 543 Property had encroached on a certain area of the 541 Property by paving, installing a fence, and putting a shed on the area. The president of the defendant, Michael Dominici, asserted in an affidavit that when he became the titled owner of the 543 Property in 1985, the paving and fence were already present, leading him to believe the disputed portion of the property belonged to the defendant. Dominici admitted that on August 18, 1990, he received a letter dated August 15, 1990, from the lawyer for the plaintiff’s predecessor-in-interest confirming a telephone call on August 13, 1990 (hereinafter together the 1990 letter and call), in which the lawyer notified Dominici of the encroachment and demanded that he vacate the disputed portion of the property or agree to a lease. Dominici further stated in his affidavit that he awaited further communication with proof of the claims. No further actions were taken with regard to the encroachment until 2014, when the plaintiff’s counsel sent Dominici a letter notifying him of the encroachment and warning of the commencement of an action to recover the disputed portion of the property if an agreement could not be reached. …

Under the pre-amendment law, in order to establish a claim to property by adverse possession, a claimant must prove, by clear and convincing evidence, that possession of the property was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period … . While adverse possession is not a favored method of procuring title to real property, it is both a necessary and recognized method of acquiring title… . Further, under the law existing at the time the adverse possession by the defendant occurred, in order to defeat the claim of right, actual knowledge by the possessor as to who was the true owner was insufficient; an overt acknowledgment during the statutory period that ownership rested with another party was required … . Here, there was no “overt acknowledgment” by Dominici that ownership rested with another party. SLC Coram, LLC v 543 Middle Country Rd. Realty, LLC, 2018 NY Slip Op 03723, Second Dept 5-23-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (ADVERSE POSSESSION, DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY GRANTED, ELEMENTS OF PRE-AMENDMENT PROOF OF A CLAIM OF RIGHT APPLIED TO THE DISPUTED PROPERTY (SECOND DEPT))/ADVERSE POSSESSION (DISMISSAL OF DEFENDANT’S COUNTERCLAIM FOR ADVERSE POSSESSION PROPERLY GRANTED, ELEMENTS OF PRE-AMENDMENT PROOF OF A CLAIM OF RIGHT APPLIED TO THE DISPUTED PROPERTY (SECOND DEPT))

You might also like
PLAINTIFFS’ MEDICAL MALPRACTICE ACTION SEEKING RECOVERY OF THE COSTS OF CARING FOR A SEVERELY DISABLED CHILD SHOULD NOT HAVE BEEN DISMISSED; PROOF REQUIREMENTS EXPLAINED (SECOND DEPT).
PEOPLE’S FAILURE TO OBJECT TO JURY INSTRUCTION WHICH (UNNECESSARILY) INCREASED THEIR BURDEN OF PROOF REQUIRED THE PEOPLE TO MEET THAT BURDEN.
EVEN THOUGH THE PRESUMPTION OF LEGITIMACY WAS NOT REBUTTED WITH RESPECT TO MOTHER’S HUSBAND IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE APPLIED THE DOCTRINE OF EQUITABLE ESTOPPEL UNDER A ‘BEST INTERESTS OF THE CHILD’ ANALYSIS TO ADJUDICATE THE RESPONDENT, WITH WHOM A CHILD-PARENT BOND HAD DEVELOPED, THE FATHER (SECOND DEPT).
Security at Homeless Shelter Is a Governmental Function–City Immune from Suit by Plaintiff Who Was Assaulted at the Shelter/Private Security Company Not Immune/Plaintiff Was a Third-Party Beneficiary of the Contract Between the Department of Homeless Services and the Security Company/Security Company Did Not Demonstrate It Was Free from Negligence and the Assault Was Not Foreseeable
EVIDENCE THAT DEFENDANT USED HIS FAMILIAL RELATIONSHIP WITH THE WITNESS (DEFENDANT’S COUSIN) TO INDUCE THE WITNESS’S REFUSAL TO TESTIFY WAS SUFFICIENT TO WARRANT INTRODUCTION OF THE WITNESS’S PRIOR STATEMENTS AT TRIAL (SECOND DEPT).
A POLICE OFFICER DIRECTING TRAFFIC IS PERFORMING A GOVERNMENTAL FUNCTION REQUIRING THE EXERCISE OF DISCRETION; THE OFFICER AND THE CITY ARE THEREFORE IMMUNE FROM LIABLITY FOR A RELATED ACCIDENT (SECOND DEPT). ​
PLAINTIFF’S FALL FROM A LADDER OCCURRED DURING ROUTINE MAINTENANCE AND THEREFORE WAS NOT ACTIONABLE PURSUANT TO LABOR LAW 240 (1) (SECOND DEPT).
Judge’s Statement Defense Counsel Should Confine Her Opening to What She Intended to Prove, Under the Facts, Did Not Shift Burden of Proof

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF COULD NOT PROVE IT WAS READY, WILLING... AFTER THE PEOPLE HAD EXERCISED THEIR PEREMPTORY CHALLENGES TO JURORS AND DEFENSE...