                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     516633
________________________________

STEPHEN SALERNO,
                    Respondent,
     v                                      MEMORANDUM AND ORDER

C.E. KIFF, INC.,
                    Appellant.
________________________________


Calendar Date:   June 2, 2014

Before:   Stein, J.P., McCarthy, Garry, Lynch and Devine, JJ.

                             __________


      Neroni Law Office, Delhi (Tatiana Neroni of counsel), for
appellant.

      Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany
(Robert A. Panasci of counsel), for respondent.

                             __________


Stein, J.P.

      Appeal from an amended order of the Supreme Court (Lambert,
J.), entered January 15, 2013 in Delaware County, which, among
other things, granted plaintiff's cross motion for partial
summary judgment.

      In May 2005, plaintiff acquired title from Kerr Motors to
certain real property located on Depot Street in the Town of
Delhi, Delaware County (hereinafter the Kerr property).
Following the dedication of certain portions of Depot Street to
the Village of Delhi in 1979, the Kerr property was separated
into two smaller parcels: a 1.4-acre parcel on the east side of
Depot Street and a .15-acre parcel on the west side (hereinafter
the disputed parcel). Defendant is the owner of a parcel of real
property on Depot Street that is contiguous to the disputed
                              -2-                516633

parcel.

      In 1996, plaintiff's brother, Anthony Salerno, who owned
property adjacent to the Kerr property, entered into an agreement
with Kerr to lease the Kerr property for use in conjunction with
his logging business, and he began to use the property on both
the east and west sides of Depot Street on a daily basis. In May
2005, plaintiff purchased the Kerr property, with Kerr holding a
mortgage in conjunction with the sale. In exchange for the
continued use of the Kerr property, Salerno thereafter made the
mortgage payments to Kerr in lieu of paying rent to plaintiff.

      Subsequently, defendant's president approached Salerno
about purchasing both his property and the Kerr property. While
details regarding a possible land swap were being discussed,
defendant informed plaintiff that it had purchased the mortgage
on the Kerr property and, believing that plaintiff was in
default, threatened foreclosure. During negotiations regarding
the amount of the outstanding mortgage, defendant offered to
accept a deed to the disputed parcel in full satisfaction of the
mortgage. However, plaintiff elected instead to pay the balance
of the mortgage in its entirety.

      Around this time, defendant completed construction on a new
7,000-square-foot building and garage – part of which was erected
on the disputed parcel – and graded the remainder of the disputed
parcel for use in accessing the garage. Salerno thereafter
informed defendant that it did not have permission to use
plaintiff's property, but that plaintiff was still willing to
sell the disputed parcel to defendant on mutually agreeable
terms. When defendant failed to respond and persisted in using
plaintiff's property, Salerno eventually placed a log on the
disputed parcel to impede defendant's access to the garage.

      In February 2011, plaintiff commenced this action pursuant
to RPAPL 871 seeking, among other things, a permanent injunction
against defendant's encroachment and/or money damages. In its
answer to the complaint, defendant asserted, among other things,
various affirmative defenses. Defendant thereafter moved for
summary judgment, asserting that it had established ownership of
the disputed parcel by adverse possession, and sought an
                              -3-                516633

injunction barring plaintiff from installing any obstructions
thereon. Plaintiff cross-moved, seeking partial summary judgment
with respect to the issue of whether defendant's building was
encroaching upon his property and dismissing defendant's
affirmative defenses and request for injunctive relief. Supreme
Court denied defendant's motion, granted partial summary judgment
to plaintiff and dismissed defendant's affirmative defenses, with
one exception not at issue here. Upon defendant's appeal, we now
affirm.

      We reject defendant's contention that Supreme Court erred
in granting partial summary judgment to plaintiff. With respect
to his cross motion, plaintiff had the threshold burden of making
a prima facie showing that he owned the disputed parcel and that
defendant's building was constructed, at least in part, thereon
(see RPAPL 871 [1]; Skyview Motel, LLC v Wald, 82 AD3d 1081, 1082
[2011]; Christopher v Rosse, 91 AD2d 768, 769 [1982]; Duggan v
Hyland, 50 AD2d 1066, 1066 [1975]; see generally Bergstrom v
McChesney, 92 AD3d 1125, 1126 [2012]). To that end, plaintiff
proffered the 2005 deed by which he acquired title to the Kerr
property, together with the sworn affidavit of a licensed
surveyor, who prepared a survey and opined that plaintiff was the
lawful owner of the disputed parcel and that defendant's building
encroaches on said parcel by as much as 10.4 feet at its widest
point.

      Thus, the burden shifted to defendant to raise a triable
issue of fact, which it attempted to do by asserting that it had
acquired title to the disputed parcel by adverse possession. To
establish adverse possession, defendant was required to
demonstrate, by clear and convincing evidence, that its
possession was "(1) hostile and under claim of right; (2) actual;
(3) open and notorious; (4) exclusive; and (5) continuous for the
required [10-year] period" (Walling v Przybylo, 7 NY3d 228, 232
[2006]; see Quinlan v Doe, 107 AD3d 1373, 1374 [2013], lv denied
22 NY3d 854 [2013]; Ziegler v Serrano, 74 AD3d 1610, 1611-1612
[2010], lv denied 15 NY3d 714 [2010]). Additionally, where, as
here, the claim of right is not founded upon a written
instrument, it was necessary for defendant to "establish that the
land was 'usually cultivated or improved' or 'protected by a
substantial inclosure'" (Estate of Becker v Murtagh, 19 NY3d 75,
                               -4-                516633

81 [2012], quoting RPAPL former 522; accord Robbins v Schiff, 106
AD3d 1215, 1216 [2013]). Upon our review of the record, we agree
with Supreme Court's conclusion that defendant failed to raise an
issue of fact with respect to more than one of these elements.

      Specifically, defendant has failed to establish that its
use of the disputed parcel was continuous or exclusive. The only
relevant evidence submitted by defendant consisted of the
affidavits of two of its employees, one of whom worked from the
early 1960s until 1985 and the other from 1987 to 2011. These
employees simply alleged that vehicles belonging to defendant and
its employees and customers were driven and parked on the Kerr
property "all the time" without apparent complaint from Kerr.
This generalized statement did not sufficiently establish the
frequency or duration of such activity, important factors in
determining whether actual possession was continuous (see
Mayville v Webb, 267 AD2d 711, 712 [1999]; Kitchen v Village of
Sherburne, 266 AD2d 786, 787-788 [1999]; see generally Ray v
Beacon Hudson Mtn. Corp., 88 NY2d 154, 160 [1996]; Robbins v
Schiff, 106 AD3d at 1217). Defendant also failed to raise an
issue of fact regarding the element of exclusivity, as it offered
no evidence that it exercised exclusive possession and control of
the disputed parcel (see Estate of Becker v Murtagh, 19 NY3d at
83; Brocco v Mileo, 144 AD2d 200, 201 [1988]).1 Finally,
defendant presented no evidence that it cultivated or improved
the disputed parcel during the relevant period.2 Although
defendant contends that its title through adverse possession
vested sometime during the 1980s, the only indicia of improvement
were affidavits stating that plowing was performed and repairs
were made after 2002 and that an old building was removed and the


    1
        Although, inasmuch as defendant did not meet its burden
in this regard, it is unnecessary for us to consider plaintiff's
proof, we note that plaintiff submitted evidence that, among
other things, a building owned by Kerr (followed by plaintiff)
occupied the disputed parcel until approximately 2001, that Kerr
used the parcel for its business until 1995 and that Salerno has
used the parcel for his business since approximately 1997.
    2
        Defendant never asserted that the property was inclosed.
                                 -5-                  516633

property graded in preparation for the construction of
defendant's building. Accordingly, Supreme Court properly
granted plaintiff's cross motion for partial summary judgment and
denied defendant's motion with regard to its claim of adverse
possession and request for related relief.3

      We have examined defendant's remaining contentions and, to
the extent they are properly before us, find them to be lacking
in merit.

         McCarthy, Garry, Lynch and Devine, JJ., concur.



         ORDERED that the amended order is affirmed, with costs.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court




     3
        Because we find that defendant failed to raise a triable
issue of fact with regard to adverse possession under RPAPL
article 5 as it existed before the 2008 legislative amendments,
we need not address its contention that Supreme Court
unconstitutionally applied those amendments to this action.
