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UNBEKNOWNST TO ALL DURING THE 1992 SURROGATE’S COURT PROCEEDING, THE DECEDENT’S BROTHER WAS STILL ALIVE; DECEDENT’S NEPHEW TOOK POSSESSION OF DECEDENT’S PROPERTY, A THREE-STORY BUILDING, IN 1993; THE NEPHEW FIRST BECAME AWARE OF DECEDENT’S BROTHER’S INTEREST IN THE PROPERTY IN 2019; THE COURT OF APPEALS DETERMINED THE NEPHEW ACQUIRED THE PROPERTY BY ADVERSE POSSESSION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion, determined respondent (Mr. Golobe), who “inherited” the building after his aunt (Dorothy) died, was entitled to the building through adverse possession after it became known that Dorothy’s brother, Yale, was still alive. During the Surrogate’s Court proceeding a family friend testified that Yale  predeceased Dorothy by six or seven years:

Mr. Golobe. Mr. Golobe took possession of the Premises in October 1992 and has maintained possession since then. He has negotiated leases, collected and retained rent, paid property taxes, executed a construction mortgage, and made substantial renovations to the Premises. Those renovations include a complete structural support overhaul, an interior gut renovation, the replacement of the front entrance and door, the replacement of the second and third floor windows, and the replacement of the roof.

Yale actually died the year after Dorothy, in 1993. His estate passed to his wife Helen, then to Helen’s sister Beatrice, then to Beatrice’s husband Emil Kraus. Upon Mr. Kraus’s death, his estate passed to the Trust, the defendant-appellant in this case. * * *

The question—whether a cotenant may adversely possess property when neither cotenant is aware of the existence of the co-tenancy—is an issue of first impression in New York. We hold that a cotenant may obtain full ownership of jointly owned property even when neither party is aware of the other cotenant’s interest. Mr. Golobe did so.

“To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years)” … . The parties agree that Mr. Golobe actually, exclusively and continuously occupied the Premises for over 20 years, beginning in October 1992. We must determine whether Mr. Golobe’s possession was hostile, under a claim of right, and open and notorious. It was all three. Golobe v Mielnicki, 2025 NY Slip Op 01670, CtApp 3-20-25

Practice Point: In a matter of first impression, the Court of Appeals determined a cotenant may adversely possess property even when neither cotenant is aware of the existence of the co-tenancy.

 

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