Silverman v Petykowski
Attorneys and Parties
Brief Summary
Real property boundary dispute and quiet title under RPAPL article 15 [action to determine claims to real property], with alternative claim of adverse possession.
Denied plaintiff's motion for summary judgment and granted defendants' cross-motion dismissing the amended complaint in its entirety.
The grant of defendants' cross-motion dismissing the amended complaint was reversed (modified) and denied; the denial of plaintiff's motion was otherwise affirmed.
Plaintiff failed to submit competent survey evidence (unsupported 2006 survey) to establish the boundary despite a recorded deed under CPLR 4522 [recorded instruments are prima facie evidence of their contents], while defendants relied on a conclusory surveyor affidavit lacking a factual basis. Adverse possession issues remained because the record did not conclusively show whether the fence and stone markers were more than de minimis encroachments under RPAPL 543(1) [limits adverse possession claims based on de minimis non-structural encroachments] or whether the possession was sufficiently open and notorious under RPAPL § 522 [requires acts sufficiently open to put a reasonably diligent owner on notice].
Background
Adjacent East Hampton property owners disputed a narrow strip of land after defendants' 2022 survey placed stakes on plaintiff's side of a fence she erected following a 2006 survey. Plaintiff, relying on her 1999 recorded deed and the 2006 survey, alleged encroachment and sought a declaration that the disputed tract is within her boundary (title by deed under RPAPL article 15) or, alternatively, title by adverse possession, and also sought damages for trespass and related claims.
Lower Court Decision
The Supreme Court, Suffolk County, denied plaintiff's motion for summary judgment on title-by-deed and adverse possession and granted defendants' cross-motion dismissing the amended complaint, including the remaining tort claims.
Appellate Division Reversal
Modified the order by denying defendants' cross-motion in full and reinstating all claims. The court held plaintiff did not make a prima facie showing because the 2006 survey lacked a supporting surveyor affidavit to interpret and attest to its accuracy, so she could not locate the disputed tract notwithstanding her 1999 deed (CPLR 4522). Defendants also failed to eliminate triable issues: their surveyor's affidavit was conclusory, premised on an unsubstantiated claim that a road shifted over time, and lacked a factual basis. On adverse possession, plaintiff did not establish entitlement as a matter of law because the fence and stone markers may be de minimis under RPAPL 543(1) and the record did not conclusively show open and notorious possession under RPAPL § 522, but defendants likewise failed to show, prima facie, the absence of adverse possession (see RPAPL § 501 [defines elements of adverse possession]). The remaining tort claims also could not be dismissed for lack of a prima facie showing.
Legal Significance
Reaffirms that in boundary disputes, surveys must be supported by a surveyor affidavit interpreting and attesting to the survey to be competent summary judgment evidence; recorded deeds establish ownership of the described parcel but do not, by themselves, fix the location of boundary lines. Conclusory expert affidavits are insufficient to meet a movant's prima facie burden. Clarifies application of RPAPL 543(1) in adverse possession cases involving fences and markers and emphasizes the notice requirement under RPAPL § 522.
To win summary judgment in a boundary-line and adverse possession dispute, parties must provide competent survey proof with a surveyor affidavit; conclusory opinions will not suffice, and questions of adverse possession—including whether encroachments are more than de minimis and sufficiently open and notorious—are typically fact-driven and not suitable for dismissal on a sparse record.