Plaintiff sought a declaration that she had title by adverse possession to a strip of land on the Defendant’s property between the location of a fence erected by the Plaintiff on the Defendant’s land and the Plaintiff’s property. The Supreme Court, Monroe County, granted the Plaintiff’s cross-motion for summary judgment. The Appellate Division, Fourth Department affirmed.

Defendant argued that the Plaintiff was required to commence an Action to quiet title after 1996, when the running of the ten-years for a claim of adverse possession had been completed and before 2014. The Appellate Division held that the “plaintiff had no legal obligation to take any legal action to obtain title to the disputed land after 1996 inasmuch as title vested with her that year upon expiration of the ten-year period”.

The Defendant also contended that the Plaintiff did not establish a “claim of right” because the survey given to the Plaintiff when she purchased her property showed the fence was beyond her property line. However, according to the Appellate Division, “[e]ven if plaintiff had read the survey and was aware of the encroachment, the [Supreme] court property determined that such would not defeat her claim of right”. The Court of Appeals in Walling v. Przybylo (7 N.Y.3d 228) stated that “[c]onduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessor”. Slacer v. Kearney, 2017 NY Slip Op 04589, decided June 9, 2017, is posted at

http://www.nycourts.gov/reporter/3dseries/2017/2017_04589.htm.