BIRNBAUM v. BRODY, N.Y. App. Div., Judgment, Law, casemine.com

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Factual and Procedural Background

The plaintiffs, Henry and Resi Birnbaum, claim title by adverse possession to an approximately 21-foot-by-16-foot parcel of land located directly behind their one-family home in Kings County, New York, which they purchased on August 31, 1971. The disputed parcel has been enclosed by a chain link fence since 1958, running along the eastern and western sides to a concrete garage and wall on the southern side. The plaintiffs’ predecessor in title planted grass and installed swings in this enclosed backyard area. Since purchasing the property, the plaintiffs have maintained the grass, shrubbery, and flowers, replaced the swing set, and added playground equipment, lawn chairs, and tables. The case reached the Appellate Division of the Supreme Court of New York, Second Department, on appeal from the Supreme Court, Kings County (Cohen, J.). The court issued an order affirming the judgment with costs.

Legal Issues Presented

Whether the plaintiffs established title to the disputed parcel by adverse possession under RPAPL 522.
Whether the plaintiffs’ use of the parcel satisfied the statutory requirements of "usual cultivation or improvement" or "substantial inclosure" under RPAPL 522.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 A.D.2d 118	Definition of "usually cultivated or improved" and "protected by a substantial inclosure" under RPAPL 522.	Used to confirm that the plaintiffs’ maintenance and enclosure of the parcel met statutory requirements.
Ramapo Mfg. Co. v Mapes, 216 N.Y. 362, 372-373	The type of cultivation or improvement depends on the character, condition, location, and potential uses of the property.	Applied to assess whether the plaintiffs’ lawn maintenance and improvements sufficed for adverse possession.
Mastin v Village of Lima, 86 A.D.2d 777	Proof of cultivation can be satisfied by exclusive cutting of grass depending on property character.	Supported the conclusion that cutting grass was sufficient cultivation here.
McCosker v Rollie Estates, 7 A.D.2d 865, 866	Similar to Mastin, regarding cultivation by cutting grass.	Reinforced the sufficiency of the plaintiffs’ maintenance activities.
Woodrow v Sisson, 154 A.D.2d 829	Examples of sufficient cultivation or improvement under RPAPL 522.	Supported the court’s finding of adequate cultivation or improvement.
Golden Hammer Auto Body Corp. v Consolidated Rail Corp., 151 A.D.2d 545	Criteria for substantial inclosure and cultivation under RPAPL 522.	Used to determine that the chain link fence was a substantial inclosure.
Bradt v Giovannone, 35 A.D.2d 322	Standards for substantial inclosure and adverse possession requirements.	Applied to support the enclosure and cultivation findings.
Bassett v Nichols, 26 A.D.2d 569	Substantial inclosure requirement under RPAPL 522.	Referenced in assessing fence height and enclosure sufficiency.
Knowles v Miskela, 11 A.D.2d 589	Substantial inclosure and adverse possession principles.	Considered in evaluating the enclosure of the parcel.

Court's Reasoning and Analysis

The court analyzed the plaintiffs' claim under RPAPL 522, which requires proof of actual occupation through either usual cultivation or improvement, or substantial inclosure. The court found unrefuted evidence that the plaintiffs maintained the grass, shrubbery, and flowers, and installed and maintained playground equipment, satisfying the "usual cultivation or improvement" standard. The chain link fence, though slightly under three feet in height, was deemed a substantial inclosure given the property’s character and the nature of the plaintiffs' use. The court also rejected the defendants' remaining contentions as without merit, thereby affirming the lower court's judgment.

Holding and Implications

The judgment is affirmed, with costs.

This decision confirms that the plaintiffs have established title by adverse possession to the disputed parcel under RPAPL 522 through sufficient cultivation/improvement and substantial inclosure. The direct effect is that the plaintiffs’ claim is upheld, and no new precedent beyond the application of existing adverse possession principles was established.

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HENRY BIRNBAUM et al., Respondents, v. PHILIP BRODY et al., Appellants, et al., Defendants.

Ordered that the judgment is affirmed, with costs.

The plaintiffs Henry and Resi Birnbaum claim title by adverse possession to an approximately 21-foot-by-16-foot parcel of land located directly behind the one-family home in Kings County which they purchased on August 31, 1971. The record establishes that since 1958 the disputed parcel has been enclosed by a chain link fence which runs along the eastern and western sides of the plaintiffs' lot to a concrete garage and wall on the southern side of the parcel claimed by adverse possession. The plaintiffs' predecessor in title planted grass and installed swings in this enclosed backyard area, and since 1971 the plaintiffs have cut the grass and maintained the shrubbery and flowers in the backyard. Since their purchase of the premises 18 years ago, the plaintiffs have also replaced the original swing set on the disputed parcel and have placed additional playground equipment, lawn chairs, and tables on the site.

RPAPL 522 provides that one seeking to obtain title by adverse possession on a claim not based upon a written instrument must show actual occupation of the premises which requires proof that the parcel has been "usually cultivated or improved" (RPAPL 522) or "protected by a substantial inclosure" (RPAPL 522; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 A.D.2d 118). The type of cultivation or improvement sufficient to satisfy the statute will vary with the character, condition, location and potential uses for the property (see, Ramapo Mfg. Co. v Mapes, 216 N.Y. 362, 372-373; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra), and proof that grass on the property has been cut exclusively by the party seeking adverse possession may be sufficient to satisfy the statutory requirement of cultivation in view of the character of the disputed property (see, Ramapo Mfg. Co. v Mapes, supra; Mastin v Village of Lima, 86 A.D.2d 777; McCosker v Rollie Estates, 7 A.D.2d 865, 866). In view of the size and character of the subject parcel, we agree with the Supreme Court that the unrefuted evidence in the record which establishes that the plaintiffs have maintained the grass, shrubbery and flowers in the backyard area and have further installed and maintained playground equipment for their children is sufficient to satisfy the usual cultivation or improvement requirements of RPAPL 522 (1) (see, Woodrow v Sisson, 154 A.D.2d 829; Golden Hammer Auto Body Corp. v Consolidated Rail Corp., 151 A.D.2d 545; Bradt v Giovannone, 35 A.D.2d 322).

In addition, although the chain link fence which runs along the eastern and western sides of the subject parcel is slightly less than three feet in height, in light of the character of the property and the nature of the plaintiffs' use, we conclude that the parcel was substantially enclosed as required by RPAPL 522 (2) (see, Golden Hammer Auto Body Corp. v Consolidated Rail Corp., supra; Bradt v Giovannone, supra; Bassett v Nichols, 26 A.D.2d 569; Knowles v Miskela, 11 A.D.2d 589).

We have examined the defendants' remaining contentions and find that they are without merit. Thompson, J.P., Eiber, Sullivan and Harwood, JJ., concur.

BIRNBAUM v. BRODY