(File photo-July 4, 2021 -one lane of road blocked)
NYS Supreme Court Judge Diane Y. Devlin has ruled in favor of Godfrey’s Pond/The Genesee County Fish and Game Protective Association’s use of the entry/exit road off of Griswold Road, after Genesee County Fish and Game Protective Association filed an instant claim seeking a declaration of legal title of a portion of a road on its property through adverse possession. Capri Sullivan’s cross motion for summary judgement to dismiss the cause of action for adverse possession has been denied. Capri Sullivan/aka Capri Dix, had argued that permission to use their section of the road was rescinded in 2021. Since 2015, Sullivan has lived across the road from the entry/exit road to Godfrey’s Pond. Sullivan also own 45 acres of land to the east of the road.
Link to original story:
Link to follow up story:
GENESEE COUNTY/Entry road to Godfrey’s Pond is back to two lanes – Video News Service
Analysis of the case/Judge Devlin
Courts can grant motions for summary judgment for a declaration of adverse possession. Flushing Ave. LLC v February. 165 AD’3d 742 (2dDept.2018), The court finds that the Plaintiff (Godfrey’s Pond) met its burden as to satisfying the elements because the use of Defendant’s (Capri Sullivan) side of the road was actual, more than 10 years, exclusive and continuous, and that the subject road was “usually cultivated or improved” Since Plaintiff paved it and installed speed bumps and speed limit signs, Waterview Towers
v 2610 Cropsey. 181 AD 3d 754 (2d Dept. 2020)
Nowhere in the record is any indication that the Plaintiff did not use both sides of the road during the statutory period. There is no direct evidence that Defendants or their predecessors granted permission to use its side of the road. Defendant Capri Sullivan’s great-grandfather, Vincent Frens, who lived at Defendant’s property for many years, died in 2003, and Capri Sullivan testified that her grandmother and great-aunt suffer from dementia. ‘The record does not contain any documents to show permissive use. It is clear from the court’s site inspection that Plaintiffs use of the entire road is necessary for ingress and egress and to be able to function as fish and game association, especially since there are year-round residents who live on the property.
“In an action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before commencement of the action.” New York CPLR 212(a)and Slacer v Kearney 151 AD 3d 1602 (4th Dept. 2017). Here the Plaintiff has had possession of the road for perhaps more than 70 years by its daily use of the road and its adding speed bumps on both sides of the road.
The Court finds that the Plaintiff met its burden and Defendants failed to create an issue of fact. The Court grants Plaintiff’s motion for a declaration that it is entitled to Defendants’ half of the road together with one foot width of land abutting the road.
The Court denies Defendants’ Cross Motion.