Finger[pointing] Backfires on Grand St.

This originally appeared on the SGR Blog.

Parking space disputes between neighbors, when coupled, conflated  and complicated with claims of adverse possession, can ignite a legal conflagration. And, as a recent case illustrates, jurisprudential fireworks  intensify exponentially where the parties asserting and defending their right to park is a group of attorneys.

Kenneth J. Finger and family members owed a parcel  on Grand Street in White Plains adjacent to a lot owned by Grand St. Realty, LLC.  In May 2016, the Fingers filed suit for a judgment declaring they had acquired, by adverse possession, title to a 24-inch strip of land on Grand’s property. The strip runs between the contiguous parcels for the length of a driveway separating the properties, and a 4-foot strip at the rear of Grand’s land that runs between the two parcels.

In 1980, the Fingers purchased their premises from Marino & Weiss and shortly thereafter began occupying them with their law practice and some rentals. Kenneth Finger conceded at his deposition that, at the time of the purchase, he knew that the disputed property was not part of his land. Specifically, he testified that “obviously, if we’re claiming it by adverse possession, it was outside the meets and bounds” of the Fingers’ premises.

Finger testified at his deposition that, over the years, he maintained the disputed property by trimming the hedges, bushes and plants. He also stated in an affidavit  that, from 1981 until approximately 2005, he himself patched the driveway; cleared the snow and spread salt or ice melt (either by himself or via a plowing company he had hired); and repaved the area.

Harris Markhoff, a tenant, and the former owner of the premises before the sale to the  Fingers, stated in an affidavit that he recollected that “at no time” did the prior owners of Grand’s premises “ever do anything to maintain” the disputed property. Rather, Markhoff stated, the disputed property “was always maintained by us and our agents.”

Carl Finger also submitted an affidavit in which he stated that no one on the staff was ever authorized to contact Marino & Weiss for parking issues or regarding the disputed property. He further stated that no one on the staff ever requested permission from Marino & Weiss to park in the disputed property. And he also stated that the disputed property was always used exclusively by the Fingers and their tenants, and that either he or Kenneth Finger were the only ones who trimmed the hedges, cleared snow or leaves (or hired people to do so).

In May 2015, Grand bought its premises from a company owned by Marino and his wife. Grand bought the property with the plan of demolishing the existing building and erecting a new building.  Grand’s principal stated in his affidavit that the City of White Plains, required Grand to have seven parking spots for the new building. In order to have the requisite number of parking spots, Grand would have to use a portion of the disputed property.

Grand’s principal also stated that, prior to the commencement of the litigation, the Fingers attempted to negotiate for permission to use the disputed property, including the possibility of Grand granting an easement for such use. Finger stated that “there is no evidence” that he ever negotiated with Grand to use the disputed property; that any negotiations occurred after Grand “trespassed on” Fingers’ property; and that the negotiations “were not for any kind of permission”.

The Fingers moved for summary judgment seeking a declaration that they had acquired title to the disputed property by adverse possession. Grand cross-moved for summary judgment declaring that the Fingers was not the owners of the disputed property by adverse possession, and dismissing the amended complaint. Supreme Court denied the motion and granted the cross motion.

Marino testified that, when he purchased the property in 1996, there was a hedge between the two properties that he believed was on his property, and that he maintained “for the most part.” He testified that a tenant in his building planted some dirt areas that he maintained. Marino testified that, although he did some of the maintenance himself, he eventually hired a man named Eugeneo Balboa to do the work. Balboa maintained Grand’s premises (including some of the disputed property) from approximately 1996 to 2008 or 2009. Marino and Balboa over the years raked, mowed, trimmed (including the side of the hedge that faced the Fingers’ premises), picked up litter, trimmed the bush on the property, blew the grass clippings, including any that went over into the Fingers’ premises, and Balboa would “do the snow in the winter.”

Marino also testified that, from time to time, some of the Fingers’ cars would encroach from the Fingers’ premises over into Grand’s premises. He testified that “once or twice they may have called and said that a car would be parking here or there. And I said fine.” Marino explained that, while he never had that conversation with anyone from the  Fingers’ firm directly, his staff “may have taken calls” that he was aware of. He specifically testified that “from time to time, yeah. I remember that,” and that he was “okay with that.” Marino testified that “from time to time…cars that parked in their lot would park in such a way that wheels went on over the property line,” and that he allowed it to happen.

Marino also testified that the Fingers’  never made a claim to any part of the disputed property to him. Nor did they ever claim any exclusive right to the disputed property. The Fingers also never accused Marino of trespassing on any part of their property or the disputed property. Marino testified that it “was not his understanding” that the Fingers ever adversely possessed any portion of the disputed property.

Adverse possession is disfavored as a means of gaining title to land—so all elements of an adverse possession claim must be proved by clear and convincing evidence.

Supreme Court found that Grand presented evidence establishing, prima facie, that the Fingers could not prevail on their adverse possession claim and failed to raise a triable issue of fact in opposition.

It was the first requirement, essential for claims that are not based upon a written instrument, that was fatal to the Fingers’ case. They failed to demonstrate, as a matter of law, that the disputed land had been usually cultivated or improved, or protected by a substantial enclosure.

Here, taking all of the Fingers’ evidence as true, they only “merely attempted” to keep the disputed property “in presentable condition” by making only the most minimal of efforts. Those efforts failed to satisfy the requirement “that the real property in dispute was usually cultivated or improved.” For this reason alone, the Court denied the Fingers’ motion and granted Grand’s cross-motion.

Supreme Court nevertheless examined next the element of exclusivity. To establish the exclusivity element, the adverse possessor must alone care for or improve the disputed property as if it were his/her own. The focus is on whether the party claiming title by adverse possession exercised exclusive possession and control of the property. Grand submitted evidence demonstrating that its predecessor, Marino, cared for at least some of the disputed property during his entire ownership of Grand’s premises. Specifically, Marino asserted at his deposition that for many years, he had paid Balboa each month to care for both Grand’s premises and at least some portion of the disputed property by trimming the hedges facing the Fingers’ property, mowing the grass, using a blower to remove leaves, debris and grass clippings from both sides of the disputed property, maintaining plantings that his tenant had planted and clearing snow. That established Grand’s prima facie case of non-exclusivity. In opposition to this showing, the Fingers argued that they did the hedge trimming and snow removal for the disputed property, as well as patched the driveway, and even paid to have it repaved at some point in the 2006 to 2010 period. But they submitted to the Court no evidence that their caring for the disputed property was exclusive.

Supreme Court also examined the element of hostility. The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the unequivocal acts of the usurper. Hostility cannot exist when there is permission, whether that permission is express or implied.

Here, the Fingers insistence that they never discussed or sought permission from Marino, or anyone in his office, to park in the disputed property, was contradicted by Marino. While Marino clearly stated that he never personally had those conversations, he also plainly stated that he gave permission to the Fingers, by his office staff, to park there. At the very least, there was a question of fact as to whether the “use of the disputed parcel was with the implied permission” of Marino. If that were the only element of  the Fingers’ case at issue, it would have required Supreme Court to deny the motion for summary judgment and direct a hearing. However, since the Court found that the Fingers had not established, and could not establish, the elements of adverse possession by the requisite “clear and convincing” standard, no hearing was necessary on this one (irrelevant) element. And, the Court found that, as a matter of law, the disputed property did not belong to the Fingers And thus there was no basis for granting them an easement over the disputed property; and there was no basis for any restraining order on Grand. There was also no basis for a trespass claim, or any money damages.

With respect to Grand’s motion for summary judgment in its favor dismissing the amended complaint, the Court found that the first cause of action in the amended complaint, for a declaration that the disputed property belonged to the Fingers, must be dismissed. The second cause of action, which was for the claim of adverse possession, was also dismissed. The third and fourth causes of action, for injunctive relief, could not be sustained, as the Court determined that the Fingers failed to meet their burden of establishing adverse possession of the disputed property.  Thus, there was no basis for the money damages, trespass or counsel fees claims set forth in the fifth, sixth and seventh causes of action. Nor was there a basis for the Court to order an easement, as requested in the eighth cause of action. Accordingly, the Court dismissed the amended complaint in its entirety. The Fingers appealed.

The appellate court noted at the outset that a party seeking to obtain title by adverse possession must prove by clear and convincing evidence the following common-law requirements of adverse possession: that (1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years. Additionally, under the law in effect when title allegedly vested in the Fingers by adverse possession, where, as here, the adverse possession was not founded upon a written instrument, the possessor must also establish that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure”.

The appellate court agreed with Supreme Court’s determination denying that branch of Fingers’ motion which was for summary judgment declaring that they had acquired title to the disputed property by adverse possession, as they failed to establish, as a matter of law, that the disputed property was either “usually cultivated or improved” or “protected by a substantial inclosure”. And the court also agreed with the trial court’s determination granting the Grand’s cross- motion for summary judgment, in effect, declaring that the Fingers were was not the owner of the disputed property by adverse possession, and dismissing the amended complaint. Grand established that Fingers’ acts of maintaining and using the disputed property did not satisfy the statutory requirement of usual cultivation or improvement and that the disputed property was not protected by a substantial enclosure. Additionally, Grand established, prima facie, that Fingers’ possession of the disputed property was not under a claim of right.

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