                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 23, 2015                      518926
________________________________

LOUIS LINDINE,
                     Plaintiff,
     and

MARTHA LINDINE,
                     Appellant,              MEMORANDUM AND ORDER
     v

SUZANNE IASENZA,
                    Respondent.
________________________________


Calendar Date:    June 4, 2015

Before:    Garry, J.P., Rose, Devine and Clark, JJ.

                              __________


      Lawler Mahon & Rooney, LLP, New York City (Christopher S.
Rooney of counsel), for appellant.

      David E. Woodin, LLC, Catskill (David E. Woodin of
counsel), for respondent.

                              __________


Devine, J.

      Appeals (1) from an order of the Supreme Court (Elliott
III, J.), entered September 26, 2013 in Greene County, which
granted defendant's motion to dismiss the complaint, and (2) from
an order of said court, entered March 7, 2014 in Greene County,
which denied a motion by plaintiff Martha Lindine for, among
other things, leave to amend the complaint.

      This action involves a dispute amongst family members over
real property located in the Town of Windham, Greene County.
Plaintiff Louis Lindine (hereinafter Lindine) was a first cousin
                              -2-                518926

of defendant. In 1968, Lindine's parents and defendant's parents
purchased the property in question as tenants in common. Lindine
and his wife, plaintiff Martha Lindine (hereinafter plaintiff),
began residing at the property in 1984. Following the death of
Lindine's father in December 1991, Lindine's mother deeded her
interest in the property to Lindine and plaintiff. Several years
later, defendant's parents deeded to her their interest in the
property. Lindine and plaintiff commenced this action in early
2012, seeking a judgment declaring them to be the exclusive
owners of the property. Supreme Court granted defendant's motion
to dismiss the complaint for failure to state a cause of action,
and thereafter denied plaintiff's motion seeking leaves to
reargue and to amend the complaint. Plaintiff appeals from both
orders.1

      Plaintiff first argues that, because the complaint, when
read in conjunction with the submissions offered in opposition to
defendant's motion to dismiss, set forth a viable cause of
action, Supreme Court erred in ordering dismissal pursuant to
CPLR 3211 (a) (7). We disagree. A motion to dismiss for failure
to state a cause of action may be granted if "the facts alleged
do not 'fit within any cognizable legal theory'" (Hyman v
Burgess, 125 AD3d 1213, 1214 [2015], quoting Leon v Martinez, 84
NY2d 83, 87-88 [1994]). The law that would have provided Lindine
and plaintiff a valid legal claim with regard to the underlying
property dispute is RPAPL 541, which provides that, "[w]here the
relation of tenants in common has existed, the occupancy of one
tenant . . . is deemed to have been the possession of the other,
notwithstanding that the tenant so occupying the premises . . .
has claimed to hold adversely to the other. But this presumption


    1
        Lindine died in June 2013, while the motion to dismiss
was pending. While "it is [ordinarily] true that when a
plaintiff dies all proceedings as a matter of law are stayed
until an order of substitution is made" (Bova v Vinciguerra, 139
AD2d 797, 799 [1988]; see CPLR 1015, 1021), such was not required
here because plaintiff, already a party in this action, acquired
Lindine's interests in the property upon his death (see Thibodeau
v Martin, 119 AD3d 1015, 1015 n 1 [2014]; Bova v Vinciguerra, 139
AD2d at 799).
                              -3-                518926

shall cease after the expiration of ten years of continuous
exclusive occupancy by such tenant, . . . or immediately upon an
ouster by one tenant of the other and such occupying tenant may
then commence to hold adversely to his [or her] cotenant." It is
well settled that, "absent ouster, the period required by RPAPL
541 is 20 years of continuous exclusive possession before a
cotenant may be said to acquire full title by adverse possession"
(Myers v Bartholomew, 91 NY2d 630, 638 [1998]).

      We reject plaintiff's contention that she and Lindine ever
ousted defendant or defendant's parents from the property. An
ouster will not be deemed to have occurred unless the possessory
cotenant, either through words or actions, unequivocally
expresses to the nonpossessory cotenant that the property is
being adversely possessed (see id. at 633; Bank of Am., N.A. v
414 Midland Ave. Assoc., LLC, 78 AD3d 746, 749 [2010]; Guardino v
Colangelo, 262 AD2d 777, 779 [1999]). Lindine stated under oath
that he was present for a late 1991 conversation during which
defendant's mother agreed to transfer her interest in the
property to plaintiff and Lindine. When Lindine broached this
topic with defendant's mother several weeks later, however, she
purportedly stated that he would "never have enough money to buy
[her] out" and that she would refuse to pay any future carrying
costs on the property in light of plaintiff and Lindine's
permanent occupancy of it. According to Lindine, he responded by
stressing to defendant's mother that he and plaintiff regarded
the property as their home and that they would remain there
indefinitely. Even accepting as true all of these averments, and
according plaintiff every favorable inference that might be drawn
therefrom (see e.g. Bank of Am., N.A. v 414 Midland Ave. Assoc.,
LLC, 78 AD3d at 748), they prove little more than exclusive use
of the property by Lindine and plaintiff that did not rise to the
level of an ouster (see Russo Realty Corp. v Orlando, 30 AD3d
499, 500-501 [2006]; Perez v Perez, 228 AD2d 161, 162-163 [1996],
lv dismissed 89 NY2d 917 [1996]).

      Plaintiff alternatively contends that, even if no ouster
has been established, she and Lindine adversely possessed the
property, given their exclusive use of it for more than two
decades (see RPAPL 541). In support of this argument, plaintiff
emphasizes that she and Lindine paid all taxes and expenses for
                              -4-                518926

the property, and made all necessary repairs to its structural
improvements. Defendant never visited the property during the
years that plaintiff and Lindine lived there permanently and
defendant's parents, it is claimed, only did so twice. Even
accepting these allegations as true, "exclusive possession and
the payment of maintenance expenses by a [possessory] cotenant
are[, standing alone,] insufficient to establish a claim of right
for purposes of adverse possession as against a cotenant"
(Loveless Family Trust v Koenig, 77 AD3d 1447, 1449 [2010]; see
Russo Realty Corp. v Orlando, 30 AD3d at 500-501). Moreover, to
the extent that plaintiff and Lindine can be said to have
exercised a 20-year-long level of financial protection of the
property such as might reinforce a claim of adverse possession,
Lindine's inclusion of defendant's name on a homeowner's
insurance policy when, within several years of this action's
commencement, he renewed that coverage, amounted to an implicit
recognition of defendant's continued interest in the property
(compare Galli v Galli, 117 AD3d 679, 680-681 [2014]). Because
neither the complaint nor the submissions of Lindine and
plaintiff in opposition to defendant's motion to dismiss could
permit a finding of adverse possession, Supreme Court properly
concluded that the complaint failed to state a cause of action
and dismissed it.

      Turning to the motion for leave to reargue and for leave to
amend the complaint, the denial of the former relief was not
appealable (see Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]).
As for that part of Supreme Court's order denying leave to amend
the complaint, we reject defendant's contention that it is not
appealable. Nevertheless, "[i]t is proper to deny . . . leave to
amend the complaint to re-assert a cause of action that was
previously dismissed" (Dialcom, LLC v AT & T Corp., 50 AD3d 727,
728 [2008]). To the extent that the proposed amended complaint
can be viewed as asserting any claim that is meaningfully
distinct from that in the original complaint, Supreme Court
properly exercised its discretion in finding the motion to be
untimely and prejudicial to defendant (see Pagan v Quinn, 51 AD3d
1299, 1300-1301 [2008]).

     Garry, J.P., Rose and Clark, JJ., concur.
                        -5-                  518926

ORDERED that the orders are affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
