Church of St. Francis De Sales v. McGrath

200 A.D.3d 1267

158 N.Y.S.3d 375

The CHURCH OF ST. FRANCIS DE SALES, Respondent,

v.William James MCGRATH, Also Known as James McGrath, et al., Appellants, et al., Defendants.

532624

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 20, 2021

Decided and Entered: December 9, 2021

Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Eric M. Kurtz of counsel), for appellants.

Wapner, Koplovitz & Futerfas, PLLC, Kingston (Rod Futerfas of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from a judgment of the Supreme Court (Fisher, J.), entered September 8, 2020 in Ulster County, which declared, among other things, that plaintiff has a valid, absolute and unencumbered title in fee to certain property.

On March 10, 1879, plaintiff – then known as the Catholic Church at Allaben – entered into a lease agreement with Nicholas Browne under which plaintiff acquired the right to use certain property in Ulster County (hereinafter the property) for church purposes. The term of the lease was for 99 years and was made in exchange for the nominal sum of one dollar.¹ The property was subsequently transferred to several different owners, including to individuals with the surname McGrath. For over 100 years, plaintiff maintained the subject property and held regular church services thereon.

In 2018, plaintiff commenced this action pursuant to RPAPL article 15 to quiet title to the property against potential heirs, claiming that it had acquired ownership through adverse possession. Of the known potential heirs, five answered the complaint (hereinafter collectively referred to as defendants). Upon motions for summary judgment by all parties, Supreme Court issued an order granting plaintiff's motion and denying defendants’ cross motions, finding that plaintiff had acquired title to the property through adverse possession. A judgment was subsequently entered declaring, among other things, that plaintiff "has a valid[,] absolute and unencumbered title in fee" to the property. Defendants appeal.

Defendants contend that Supreme Court erred in concluding that plaintiff acquired title to the property through adverse possession because plaintiff did not make a clear and convincing showing that its use and possession was hostile. We disagree. "To demonstrate adverse possession of the parcel, plaintiff[ ] [bore the burden of showing] by clear and convincing evidence ‘that the character of the possession [wa]s hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years’ " ( Wilcox v. McLean, 90 A.D.3d 1363, 1364, 935 N.Y.S.2d 220 [2011], quoting Ray v. Beacon Hudson Mtn. Corp. , 88 N.Y.2d 154, 159, 643 N.Y.S.2d 939, 666 N.E.2d 532 [1996] ; see RPAPL former 501, 521; LS Mar., LLC v. Acme of Saranac, LLC, 174 A.D.3d 1104, 1106, 106 N.Y.S.3d 186 [2019] ).² Where title is not founded upon a written instrument, the person claiming title by adverse possession may establish title "only to that portion of the disputed premises that was cultivated, improved or protected by a substantial enclosure" ( Silipigno v. F.R. Smith & Sons, Inc., 71 A.D.3d 1255, 1257, 896 N.Y.S.2d 261 [2010] [internal quotation marks, brackets and citation omitted]; see RPAPL former 522[1], [2]; Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012] ).

In general, where "permission can be implied from the beginning, adverse possession will not arise until there is a distinct assertion of a right hostile to the owner" ( Klein v. Lowy, 265 A.D.2d 380, 381, 697 N.Y.S.2d 80 [1999] [internal quotation marks and citation omitted]; see Wilcox v. McLean, 90 A.D.3d at 1365, 935 N.Y.S.2d 220 ). However, where a landlord and tenant relationship "has existed between any persons[,] the possession of the tenant is deemed the possession of the landlord until the expiration of [10] years after the termination of the tenancy," at which time this presumption of nonadversity ceases (RPAPL former 531; see Gallea v. Hess Realty Corp., 128 A.D.2d 274, 276–277, 515 N.Y.S.2d 683 [1987], affd 71 N.Y.2d 999, 530 N.Y.S.2d 105, 525 N.E.2d 750 [1988] ). A use of land is generally presumed to be hostile "when the other elements of adverse possession are shown" ( McKeag v. Finley, 93 A.D.3d 925, 926, 939 N.Y.S.2d 644 [2012] ; see Hulett v. Korb, 192 A.D.3d 1424, 1425–1426, 145 N.Y.S.3d 644 [2021] ; Millington v. Kenny & Dittrich Amherst, LLC, 124 A.D.3d 1108, 1109, 2 N.Y.S.3d 273 [2015] ), but may be rebutted by proof that the party claiming title by adverse possession "s[ought] permission for use [of the property] from the record owner" or had "a close and cooperative relationship [with] the record owner" ( Estate of Becker v. Murtagh, 19 N.Y.3d at 82, 945 N.Y.S.2d 196, 968 N.E.2d 433 [internal quotation marks and citation omitted]).

In support of its motion for summary judgment, plaintiff submitted certain deeds in the property's chain of title, along with the affidavits of Eugene Gormley and Michael Ruane – members of plaintiff's parish council. In their affidavits, dated June 11, 2020, Gormley and Ruane explained that plaintiff "has been in exclusive and continual operation" of the property "from at least 1902 to the present time," holding weekly church services thereon for over 100 years. Plaintiff was also "exclusively responsible for maintenance and improvements on the ... property and building," which included regular lawnmowing since at least 2006, replacement of stained glass commemorative windows, placement of storm windows, and painting and reroofing the church building. These council members additionally revealed that plaintiff had, "at all relevant times," maintained property insurance and obtained religious tax exemptions for the premises. Gormley and Ruane were not aware of any instance in which defendants or their predecessors in interest made a claim of ownership to the property.

Based upon the foregoing, plaintiff established that it exclusively possessed the subject property for well beyond the 10–year adversity period, which commenced in 1988 upon expiration of the lease term in 1978 (see RPAPL former 531; Gallea v. Hess Realty Corp., 128 A.D.2d at 276–277, 515 N.Y.S.2d 683 ; Auto Gobbler Parts, Inc. v. Serpico, 109 A.D.3d 943, 944, 972 N.Y.S.2d 78 [2013] ). The affidavits of Gormley and Ruane also established that, for at least 10 years after the presumption of nonadversity expired in 1988, plaintiff maintained property insurance, applied for and secured religious tax exemptions and undertook several renovation projects and repairs of the church building. In light of the foregoing, a presumption of hostility arose, and the burden shifted to defendants to rebut the presumption or demonstrate a triable issue of fact on one of the other elements of the adverse possession claim (see Estate of Becker v. Murtagh, 19 N.Y.3d at 81–82, 945 N.Y.S.2d 196, 968 N.E.2d 433 ; 2 N. St. Corp. v. Getty Saugerties Corp., 68 A.D.3d 1392, 1395, 892 N.Y.S.2d 217 [2009], lv denied 14 N.Y.3d 706, 2010 WL 1235671 [2010] ).³

In that respect, defendants submitted a deed, dated October 19, 1885, in which James McGrath conveyed to plaintiff an adjoining parcel of land for the purpose of operating a graveyard "for the Catholics of Shandaken and neighborhood," with a grave site reserved for the "McGrath" family.⁴ Pointing to the 1885 deed, defendants averred that, "[h]ad the McGrath family wanted to provide [plaintiff] with fee simple ownership of the [property,] they would have done so." Defendants also proffered an affidavit from Elizabeth McGrath, an individual who claims to have obtained an ownership interest in the property upon her father's death in 1979. In her affidavit, McGrath claimed that she was "very...