        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

161
CA 13-00765
PRESENT: SMITH, J.P., FAHEY, CARNI, AND VALENTINO, JJ.


JAMES T. SANDORO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

9274 GROUP, INC., DEFENDANT-RESPONDENT.


THE KNOER GROUP, PLLC, BUFFALO (ROBERT E. KNOER OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

PALADINO, CAVAN, QUINLIVAN & PIERCE, BUFFALO (SHANNON M. HENEGHAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Donna M. Siwek, J.), entered February 1, 2013. The
judgment, inter alia, denied the motion of plaintiff for summary
judgment and granted the cross motion of defendant for a judgment
declaring that it is the titled owner of real property located at 204
and 208 Seneca Street, Buffalo.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action pursuant to RPAPL
article 15 seeking, inter alia, a declaration that he had acquired
title to a portion of defendant’s property by adverse possession.
Contrary to the contention of plaintiff, Supreme Court properly denied
his motion for summary judgment and granted defendant’s cross motion
for summary judgment dismissing the complaint and declaring that
defendant is the titled owner of the disputed property (see RPAPL
1521). Defendant met its burden on its cross motion by establishing
that at least two of the five elements of adverse possession were not
present, i.e., that plaintiff’s possession was not hostile and under a
claim of right, and that plaintiff’s possession did not continue for
the requisite 10 years (see Walling v Przybylo, 7 NY3d 228, 232; see
also RPAPL 501 [2]). In support of its cross motion, defendant
submitted a letter written by plaintiff during the statutory 10-year
period, in which plaintiff acknowledged defendant’s ownership of 208
Seneca Street—a large portion of the property in dispute. Plaintiff’s
acknowledgment of defendant’s ownership negates the element of
hostility during the requisite period as a matter of law (see Van
Gorder v Masterplanned, Inc., 78 NY2d 1106, 1107-1108; Bedell v Shaw,
59 NY 46, 49), and plaintiff failed to raise an issue of fact (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). We reject
plaintiff’s contention that his letter referred to a different parcel
                                 -2-                           161
                                                         CA 13-00765

of real property, and we conclude that plaintiff’s deposition
testimony on that point was merely an attempt to avoid the legal
consequences of his letter by raising feigned issues of fact (see
Taillie v Rochester Gas & Elec. Corp., 68 AD3d 1808, 1809). In any
event, the confusing and conflicting deposition testimony about what
this letter may have referred to makes it impossible as a matter of
law to support a finding of hostility by clear and convincing evidence
(see Snyder v Fabrizio, 2 AD3d 1464, 1464-1465, lv denied 2 NY3d 703).
Moreover, plaintiff conceded that his use of the property was sporadic
after his student parking contract with a local college expired, and
he therefore failed to raise an issue of fact whether his use of the
disputed property was continuous during the requisite period (see
Aubuchon Realty Company Inc. v Cohen, 294 AD2d 738, 739; see generally
Zuckerman, 49 NY2d at 562). In light of our determination, we do not
address plaintiff’s remaining contentions.




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
