Majority
p. 1106Anita Van Gorder et al., Respondents, v Masterplanned, Incorporated, Formerly Known as Muttontown Holding Corp., Appellant, et al., Defendants. Argued October 8, 1991; decided November 25, 1991
p. 1107
APPEARANCES OF COUNSEL
Elliot Paskoff, Avrom E. Greenberg and Francis J. Hearn, Jr., for appellant.
Jerry A. Weiss for respondents.
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed, with costs, and plaintiffs’ motion for summary judgment denied.
Inasmuch as a triable issue of fact exists as to whether plaintiffs, who claim to have acquired title to defendant’s property by adverse possession, acknowledged during the stat
p. 1108
utory 10-year period that actual ownership of the property rested with defendant, summary judgment should not have been awarded to plaintiffs. Such a concession, if found by the trier of fact to exist, would negate an essential element of plaintiffs’ adverse possession claim, namely, that they continued to possess the property under a claim of right throughout the statutory period (see, City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 AD2d 118 , 123; see also, Van Valkenburgh v Lutz, 304 NY 95 , 99).
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.
Order reversed, etc.
Cases cited
- City of Tonawanda v. Ellicott Creek Homeowners Ass'n 86 AD2d 118 at 123 p. 1108
- Van Valkenburgh v. Lutz 304 NY 95 at 99 p. 1108