Court Decides Rights To 18 Inch/100 Foot Boundary Line Strip
In 2007, Jemsco Realty LLC acquired property on the north side of West 47th Street described as 29 West 47th Street. At that time, the lot was improved with a 16-story building, the east wall of which extended to the property line. In 2018, N47 Associates LLC bought the lot immediately to the east, described as 27 West 47th Street. At that time, the lot was improved with a six-story building built in 1924, whose west wall was parallel to and 18 inches east of the property line. Jemsco and N47 asserted competing claims to the 18-inch wide and 100-foot-long strip of land between the west wall of the N47 Building and the east wall of the Jemsco building. There was no dispute that the strip was within the metes and bounds of N47 Building.
In or about 2018, N47 determined that it would demolish the N47 building and construct a new 31-story building on its property. In connection with its planned development of its property, N47 began negotiations with Jemsco to establish an access agreement so that it could document the existing physical conditions and install protections for the Jemsco building during the construction of the new building. When those negotiations failed, N47 commenced a special proceeding, pursuant to RPAPL 881, and sought a ruling that it has the right to construct the new building to the edge of its property line, including the strip. Jemsco then commenced a declaratory judgment action, in which it claimed that it acquired ownership of or property interests in the strip through adverse possession or by prescriptive easement. The action and special proceeding were consolidated. The parties each moved for summary judgment on their claims. And an appeal followed.
Supreme Court decided the parties’ respective motions for summary judgment on Jemsco’s claims and defenses for adverse possession and prescriptive easement with respect to the strip. Since N47 had title to the strip, Jemsco had the burden of establishing adverse possession by clear and convincing evidence.
The motion court properly concluded that Jemsco did not establish that it was entitled “to tack any prior alleged adverse possession of the Strip enjoyed by its predecessors to its own 10-year time period for adverse possession”. Thats conclusion was based on its finding that Jemsco did not establish that the prior owner “intended to, or actually did, convey any portion of the Strip” when it transferred the deed to Jemsco.
To the extent Jemsco’s adverse possession and easement claims were predicated on encroachments of aerial elements over the strip, dismissal was warranted. The aerial encroachments on which Jemsco predicated its claim were wooden spars and iron grates protruding from the sixth floor of the Jemsco building, a six-inch wide concrete window ledge running the entire length of the strip, and 22 air conditioners that protrude from the Jemsco building above the strip. None of the aerial encroachments were, as a matter of law, the type that could provide a sufficient basis for supporting or sustaining Jemsco’s claims.
However, the court properly found material issues of fact that precluded a grant of summary judgment against Jemsco on its adverse possession claims under the RPAPL or its prescriptive easement claim based on factual allegations concerning certain grounded physical intrusions. Specifically, Jemsco also argued that it was entitled to summary judgment based on certain grounded encroachments, including a purported “foundation wall,” a cinderblock protrusion, and an extension wall. In its initial decision, the court correctly found that issues of fact remained as to whether all of these grounded features gave rise to an adverse possession of the strip under the pre-2008 version of the RPAPL, and that, in the circumstances here, issues of fact remained as to whether Jemsco’s predecessor intended to and actually did transfer title to that adversely possessed property. However, upon renewal, the court correctly found that the evidence established that the purported “foundation wall” never existed as part of a substantial enclosure of the strip. Accordingly, the court appropriately granted summary judgment dismissing so much of Jemsco’s adverse possession and prescriptive easement claims as were predicated on the existence of the foundation wall.
Issues of fact also existed as to the other elements of Jemsco’s claims subject to the pre-2008 RPAPL. While N47 argued that the court had considered a Department of Buildings document which it contended established that its predecessor consented to the construction of the enclosure on the strip, the appellate court found that, even if consideration of that document was appropriate, neither the document nor other record evidence resolved all issues of fact relating to the hostility and exclusivity of Jemsco’s predecessor’s alleged adverse possession of the strip. Thus, on this basis as well, summary judgment was correctly denied as to both parties on this claim.
To the extent Jemsco may not ultimately establish an adverse possession by its predecessor under the pre-2008 RPAPL, the court also properly declined to issue a summary judgment ruling deciding Jemsco’s own claim of title by adverse possession subject to the post-2008 RPAPL. Furthermore, the court properly rejected N47’s argument that Jemsco’s claim should be dismissed because the cinderblock and extension walls were nonstructural encroachments that were permissive and non-hostile, as a matter of law, under the applicable post-2008 RPAPL 543. Even if the evidence showed that the cinderblock and extension walls were nonstructural, under RPAPL 543, nonstructural encroachments, including nonstructural walls, are deemed permissive and nonadverse if they are de minimis in nature . Here, issues of fact existed as to whether those encroachments were de minimis.