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Adam Leitman Bailey, P.C. Prevails in Adverse Possession Claim

In a recent case, Adam Leitman Bailey, P.C. prevailed in one of the very first adverse possession actions brought after the 2008 RPAPL amendments.

The defendant sought title representation after the plaintiff neighbors commenced suit alleging encroachments consisting of (1) a plantings bed of shrubbery, planted flowers, greenery, soil, and mulch, (2) a driveway light pole, (3) an underground drainage system, consisting of a covered drain located in the area of the plantings bed and underground piping, and (4) a portion of the plaintiffs’ driveway.

The title company retained Adam Leitman Bailey, P.C. to protect the interests of the insured. After answering in the action, while simultaneously cross moving for summary judgment seeking dismissal under the 2008 amendments to New York State’s adverse possession statute (claiming that the alleged encroachments were de minimus and cannot form the basis of an adverse possession claim), the Title Litigation Group at Adam Leitman Bailey, P.C. prevailed.

In a decision and order dated March 30, 2010, Judge Colabella of the Westchester County Supreme Court granted the firm’s motion for summary judgment—dismissing that part of the plaintiffs’ claim to the disputed area that was based upon the plantings bed and the driveway and lights. There were factual issues involving the prior owners that precluded summary judgment as to the drainage system, however, Adam Leitman Bailey, P.C. successfully fought for leave to renew the issue following the completion of discovery, and was still able to defeat the plaintiffs’ request for injunctive relief in its entirety with respect to the aboveground encroachments. The insured defendant immediately won the right to remove the encroachments from her premises.

To the best of the title world’s knowledge, this was the first decision ever handed down under the newly amended provisions of the adverse possession statue.

Adam Leitman Bailey, John M. Desiderio, and Jackie Halpern Weinstein represented the victorious client in this action.

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