[1]

Supreme Court of New York, Appellate Division, Second Department

[2]

No. 2000-00843

[3]

281 A.D.2d 15, 724 N.Y.S.2d 178, 2001.NY.0003101 <http://www.versuslaw.com>, 153 Ed. Law Rep. 741

[4]

April 30, 2001

[5]

PAUL MONTHIE, ET AL., RESPONDENTS,
v.
BOYLE ROAD ASSOCIATES, LLC, APPELLANT.

[6]

Counsel: Lamb & Barnosky, Llp, Melville, N.Y. (Scott M. Karson of counsel), for appellant. Alfred J. Skidmore, Hicksville, N.Y., for respondents.

[7]

David S. Ritter, J.P., Fred T. Santucci, Gabriel M. Krausman, Nancy E. Smith, JJ.

[8]

The opinion of the court was delivered by: Smith, J.

[9]

Argued - October 17, 2000

[10]

APPEAL by the defendant, in an action pursuant to RPAPL article 15 to compel the determination of claims to real property, from an order of the Supreme Court (Donald Kitson, J.), entered December 6, 1999, in Suffolk County, which denied its motion for summary judgment dismissing the complaint.

[11]

MAJORITY OPINION

[12]

On this appeal we are asked to determine if the Supreme Court properly concluded that the plaintiffs raised a triable issue of fact as to whether the real property to which they sought title through adverse possession had been held by the Comsewoque School District (hereinafter the School District) in a proprietary capacity, thereby allowing the plaintiffs to claim title by adverse possession.

[13]

HISTORY AND FACTUAL REVIEW

[14]

The School District acquired title in fee simple to a parcel of land /onsisting of 48 acres situated in the Town of Brookhaven, Suffolk County, sometime in the late 1960s. The parcel was bordered by Boyle Road. The School District subsequently built the Boyle Road Elementary School on the site, which opened in the autumn of 1971. Of the 48 acres, only 19 were used for the school buildings, playground, and athletic fields. It is undisputed that the remaining 29 acres remained undeveloped and consisted primarily of shrubs and second- growth trees.

[15]

In 1986 the School District offered to sell the 29-acre parcel after a referendum authorizing the sale was conducted and approved by the School District voters on May 21, 1985, in compliance with the Education Law. In the notice to bidders, the site was described as "real property known as vacant land at the Boyle Road School site". The notice invited sealed bids and noted that the land was zoned "Residential-B1". An accompanying portion of the offering written on School District stationary read, "the Board of Education of the Brookhaven-Comsewoque Union School District is offering to sell * * * vacant land which [is] no longer required for school purposes". In specifically describing the Boyle Road property, the offer stated, "the parcel of property being offered is an undeveloped portion of the Boyle Road School site of approximately forty-eight (48) acres. The school has developed approximately 19 acres, and the remaining acreage is not being used".

[16]

In 1988 the School District entered into a contract to sell the acreage to a local developer. Although the record is incomplete, it appears that disagreements concerning the types of residential units that would be allowed on the site developed over the course of two or three years, which were not resolved. No transfer of title relative to the parcel ever took place.

[17]

It is uncontroverted that the 29-acre parcel remained in its natural state from its original offering in 1986 until 1998. The authority to sell the property remained and no activity germane to the use of the parcel for School District purposes took place during that time period. The parcel was not partitioned or otherwise subdivided from the 19 acres devoted to the elementary school. The record does reflect, however, that sometime prior to 1983, the School District installed and maintained a cyclone fence, approximately 630 feet in length, which partially separated the school's playing fields from the wooded acreage.

[18]

Although the appellate record contains none of the details, the defendant, Boyle Road Associates, LLC (hereinafter Boyle Road), acquired title to the 29- acre parcel from the School District on August 20, 1998. The deed pertaining to the transfer was recorded in the Suffolk County Clerk's Office on August 28, 1998.

[19]

Following the acquisition of the property by Boyle Road, it was discovered that several homeowners with properties contiguous to the subject parcel had been using portions of the parcel for many years. The properties in question consisted of lots with single-family dwellings which fronted Janet Street in Port Jefferson Station. Boyle Road sought use of the full parcel and demanded, through letters and otherwise, that the homeowners relinquish use and enjoyment of the strips of land.

[20]

The demands gave rise to the subject action, originally commenced as a proceeding by an order to show cause and petition, both dated February 18, 1999. The original respondent was the School District, but by stipulation dated April 13, 1999, the proceeding was converted to an action pursuant to RPAPL article 15, and Boyle Road was substituted as the sole defendant. The original plaintiffs were Paul and Jeri Monthie of 18 Janet Street, Richard and Kristen Sallustro of 20 Janet Street, Albert J., Jr., and Madeline Cimaglia of 16 Janet Street, Guy and Lorryn Tomasicchio of 6 Janet Street, and Mark and Laura Lorandrini of 22 Janet Street (hereinafter collectively the plaintiffs). The plaintiffs alleged that they had acquired title to the disputed portions of the property by adverse possession. They further alleged that they, and/or their predecessors in interest, had been in exclusive possession of the adversely- claimed premises and had been in exclusive, open, notorious, and actual possession of the same continuously for more than 10 years prior to September 1, 1998. The plaintiffs also asserted that the property in question had "never been put to public use and [has] continuously [been] held in a proprietary capacity".

[21]

Boyle Road served an answer with counterclaims dated April 15, 1999, seeking, inter alia, a declaration that it was the owner in fee simple of the disputed property, and sought to enjoin the plaintiffs from interfering with its use of the land. In addition to a general argument that adverse possession contrary to the recorded title did not exist, Boyle Road asserted that because the School District had owned, maintained, and operated the Boyle Road Elementary School on the real property in its governmental capacity, title could not be lost through adverse possession as a matter of law. The plaintiffs served a reply to the counterclaim dated April 23, 1999.

[22]

On August 30, 1999, Boyle Road moved for summary judgment seeking dismissal of the complaint and a declaration that the plaintiffs had no legal right or interest in the disputed property. In support of the motion, Boyle Road submitted the affidavit of Frank D'Addio, the president of the School District's Board of Education, who affirmed that he had served on the Board of Education in some capacity since 1973. He reiterated that the School District had opened the elementary school in 1971, that it is situated on the original parcel of land, including that portion that the plaintiffs claimed through adverse possession, and that each plaintiff acquired title to their property after 1971. He asserted:

[23]

"[T]he District owned the subject real property in its governmental capacity, in that it owned, maintained and operated the Boyle Road Elementary School on the said property prior to its conveyance of a portion of the said real property to Boyle Road Associates on August 20, 1998 and the District continues to maintain, own, and operate the Boyle Road Elementary School on the remainder of the original parcel".

[24]

Mr. D'Addio concluded his affidavit by stating that title to the disputed property could not pass to the plaintiffs as a matter of law because, "title to real property owned by a municipal corporation in its governmental capacity can never be lost through adverse possession nor acquired by another through adverse possession".

[25]

The plaintiffs each submitted affidavits in opposition to the motion for summary judgment. Each affidavit detailed the length of time that each affiant lived on the property and described how each exercised use and control over the disputed area. The use and control included the erection of fences, sheds, and children's playgrounds, as well as the cultivation of the land with flowers and lawns. Each homeowner asserted ownership of his home under these circumstances for the requisite 10 years prior to the 1998 sale, or that the property had been purchased from predecessors in interest who had transferred it in the current condition. Those with less than 10 years of personal ownership sought to combine their term of ownership with their direct predecessor.