Del Vecchio v Gangi
Categories
Attorneys and Parties
Brief Summary
Real property boundary dispute involving a quiet title claim under RPAPL article 15 [quiet title to real property] and an adverse possession claim under RPAPL article 5 [adverse possession].
The Supreme Court, Nassau County, denied the plaintiff's cross-motion for summary judgment dismissing the defendants' adverse possession affirmative defense and first and second counterclaims, and also denied the plaintiff's request for sanctions.
The Appellate Division reversed the denial of summary judgment as to the affirmative defense alleging adverse possession and the first counterclaim, and dismissed both. It left intact the denial of summary judgment on the second counterclaim and the denial of sanctions.
The defendants failed to show that they or their predecessor satisfied the 10-year statutory period for adverse possession, and their tacking theory was speculative. The 2008 amendments to RPAPL article 5 applied, including RPAPL 543(1) [de minimis non-structural encroachments, including fences, are deemed permissive and non-adverse], and the defendants did not show any vested rights predating those amendments.
Background
The plaintiff brought an action against neighboring property owners in Bayville, alleging that in 2014 the defendants erected a metal fence and occupied a substantial portion of his land along the shared boundary. He sought, among other relief, to quiet title. The defendants answered and asserted adverse possession. After the plaintiff cross-moved for summary judgment dismissing certain defenses and counterclaims, the defendants served an amended answer that again asserted adverse possession in an affirmative defense and first counterclaim, while also changing the second counterclaim.
Lower Court Decision
The Supreme Court denied the plaintiff's cross-motion insofar as it sought summary judgment dismissing the adverse possession defense, the first counterclaim, and the second counterclaim, and denied the request for sanctions under 22 NYCRR 130-1.1 [sanctions for frivolous conduct].
Appellate Division Reversal
The Appellate Division held that the Supreme Court should have addressed the merits of the adverse possession defense and first counterclaim because the amended answer repeated the same adverse possession claim as the original answer. On the merits, the plaintiff established prima facie entitlement to summary judgment by showing that the required 10-year period had not run. The defendants failed to raise a triable issue of fact because their evidence of tacking was speculative and did not show that a predecessor adversely possessed the disputed strip and intended to transfer that undescribed portion with the deed. The court therefore dismissed the adverse possession affirmative defense and first counterclaim. It affirmed the denial of summary judgment on the second counterclaim because the amended second counterclaim differed from the original and was not the subject of the motion. It also affirmed denial of sanctions, finding the defendants' conduct was not frivolous.
Legal Significance
This decision reinforces the effect of the 2008 revisions to RPAPL article 5 [adverse possession], especially RPAPL 543(1), which treats minor non-structural encroachments such as fences as permissive rather than adverse. It also underscores that a party relying on tacking must produce evidence that a predecessor both adversely possessed the disputed area and actually intended to transfer possession of that undescribed strip along with the deeded property. Mere speculation is insufficient to defeat summary judgment.
In New York boundary disputes, an adverse possession claim based on a fence or similar encroachment will fail absent proof satisfying the post-2008 RPAPL standards, including a non-speculative showing of 10 years of adverse possession or valid tacking from a predecessor.